Certain Children v Minister for Families and Children & Ors

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 Act 2005 (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 Act 2006 (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 Act 2005 (Vic) ss 1, 3, 482, 484, 487, 488.

Mr R M Niall QC, Solicitor General for the State of Victoria, with

For the Victorian Equal Opportunity and Human Rights Commission as intervenor

Victorian Equal Opportunity and Human Rights Commission

1 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.

2 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).

3 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 Act 2006 (the Charter), the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) intervened in the proceeding.

4 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]

5 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').

6 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.

7 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.

8 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.

9 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').

10 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.

11 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).

12 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.

13 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.

14 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.

15 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.

16 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.

17 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.

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:

1. 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);

1. the entitlements under s 482(2) of the Act of persons detained in a remand centre or a youth justice centre;
2. 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
3. the purpose in s 478(c) of the Act of providing for the care and welfare of children detained there?

1. 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.

1. 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?
2. 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?

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:

1. 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);

1. the entitlements under s 482(2) of the Act of persons detained in a remand centre or a youth justice centre;
2. 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
3. the purpose in s 478(c) of the Act of providing for the care and welfare of children detained there?

1. 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?

1. 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?
2. 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?

1. 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?
2. 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?
3. 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?

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:

1. 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);

1. the entitlements under s 482(2) of the Act of persons detained in a remand centre or a youth justice centre; and/or
2. 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.

1. 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?

1. 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?
2. 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?

(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

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.

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

(i) 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;

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

(iii) 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.

24 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

25 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.

26 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);

27 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.

(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).

(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).

(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 -

...

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.

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

29 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, ... ;

...

30 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.

31 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).

32 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'.

33 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.

34 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.

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

(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

36 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:

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.

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

38 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.

39 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.

40 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

41 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.

42 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.

43 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]

44 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]

45 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.

46 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.

47 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.

48 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.

49 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.

50 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.

51 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.

52 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.

53 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.

54 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.

(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.

(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.

56 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.

57 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]

(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]

58 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).

59 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.

60 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.

61 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.

62 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.

63 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]

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

65 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.

66 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.

67 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.

68 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.

69 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.

70 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

(c) would be consistent with the overarching purpose of the Act of providing for the care and welfare of the children detained there;

such that each of those matters are jurisdictional facts.

71 The plaintiffs pointed to the following factors as establishing an immediate and natural nexus between a statutory power in one piece of legislation and the jurisdictional facts that pre-condition its exercise under other legislation.

(a) The same decision maker, the Governor in Council, was empowered with both the weapons exemption power and the power to establish Grevillea, being the place identified in the weapons exemption, as a remand centre and a YJC.

(b) The gazettal refers specifically to exempting corrections officers working within Grevillea.

(c) The weapons exemption directly impacts, necessarily, on the capacity of the order establishing the youth justice centre to discharge its functions for the care and welfare of persons detained there.

72 The plaintiffs submitted that the Secretary's evidence that she consulted the Assistant Commissioner, Security and Intelligence Division of Corrections Victoria within the DoJR, seeking advice on the authorisation of OC spray is consistent with the fact that the obligations under the CYF Act are relevant to the exercise of the exemptions power under the CoW Act, where the exemption relates to a facility established under the former.

73 The defendants submitted that there are three potential relationships between the power in s 478 of the CYF Act and the conditions in s 482:

(a) The entitlements in s 482 may be, as Garde J found, a matter that the decision maker must have regard to, that is, the relationship is one of a mandatory relevant consideration when exercising the power under s 478;

(b) The entitlements in s 482 must exist in the assessment of the decision maker, being the Governor in Council; or

(c) The conditions contemplated by s 482 must objectively exist on every occasion before the power in s 487 can be exercised.

74 Because a jurisdictional fact must exist before jurisdiction is enlivened it will be for the Court to determine whether or not such facts existed at the relevant time and find those facts in the usual way. The cases tended to focus on three aspects:

(b) Nature of the power and the nature of the condition. In particular, where that task involves the assessment of complex facts and the formation of opinions on a potentially wide range of matters, it will be suggestive of an intention that the decision-maker has the power to make a conclusive determination of the matter.[38]

(c) The inconvenience of consequences. That is, the inconvenience which would arise if the facts to be determined were regarded as jurisdictional facts rather than simply facts to be found by the decision-maker.

75 Although it has been held that whether 'transcendent' or 'important' values are at stake may be relevant,[39] those concepts are inherently indeterminate and value laden and of little utility as a guide to construction of a statute.

76 The first step is to identify with precision the facts that are said to be jurisdictional facts. It was submitted that the plaintiffs' 'facts' introduce the notion that Grevillea must have been capable of being a place at which certain purposes could be achieved at the time it was established, that is, that the Secretary could fulfil the statutory purpose of providing for the care and welfare of children who might be detained at such a place, being a facility where their statutory rights or entitlements could be fulfilled.

77 The words 'capable of fulfilling' or similar language do not appear in the statutory provisions that empower the Governor in Council or the Secretary respectively. It is not in issue that the capacity of a facility to meet the needs of detainees as required under the CYF Act is an important matter to which the Governor in Council must turn its mind. That proposition is authoritatively established by the decision in the Certain Children Appeal. However, judgment about that matter is for the decision-maker and not the Court.

78 The defendants submitted that the plaintiffs have blurred two distinct concepts. The idea that a decision is simply not open on the material before the decision maker is Wednesbury unreasonableness, most recently considered by the High Court in Minister of Immigration v Li.[40] Jurisdictional fact is a radically different concept. With Wednesbury unreasonableness the Court is not engaged in an exercise of fact finding but is engaged in a legal assessment as to whether, on the material, a particular decision was open. The plaintiff postulated that the capacity of a centre as gazetted to achieve the identified purposes and outcomes was a question of fact for the Court to determine, not as a legal conclusion as to whether the decision was infected with Wednesbury unreasonableness, but as a pre-condition to the exercise of the power.

79 The defendants submitted that such an assessment of capacity is a prospective evaluative exercise, dependant on a range of factors that do not exist prior to its establishment. The plaintiffs postulate a perverse statutory construction by elevating to the forefront the objective establishment of certain operational conditions. As the Court of Appeal held in the Certain Children Appeal, the statutory requirements for the operation of the centre and the treatment of detainees are mandatory relevant considerations that the decision maker must consider when determining the capacity or capabilities of a proposed centre, but cannot be objective facts that precondition the exercise of the power.

80 The sequence must be, the defendants submitted, first a centre is established, then it is populated, and only then it is operated. Thus, the existence of capacity to meet the s 482 entitlements does not precede establishment, but is a function of operation following establishment. In practical terms the Secretary will contemplate the necessary features of a centre so that the facility will be able to open and accept detainees, but nothing need exist at a particular level before the place is so established. The Minister must make the decision under s 478 for the proscribed purpose, and form a judgment about a facility's capacity to fulfil its purpose, including with regard to the provision of entitlements, but the extent to which it can do so is not a matter that need objectively exist before the power is exercised.

81 It is inherently unlikely that Parliament intended the court, rather than the decision-maker, to assess the complex matters of policy, fact, and administration that are involved in either the decision of the Minister when giving advice to the Governor in Council to gazette a particular location, or the decision of the Secretary when transferring a person to a centre, being matters on which reasonable minds might differ.

82 Capacity as a jurisdictional fact, as posited by the plaintiffs, would mean that the status of a facility as a remand centre or a youth justice centre would remain on an unsure legal footing until the issue was determined by a court. Garde J rightly rejected that proposition.

83 With regard to context and purpose, the defendants submitted as follows:

(a) Section 478 does not expressly specify any conditions that must exist before a facility is established. The defendants know of no case that suggests a jurisdictional fact may be implied, and for good reason.[41] There are no restrictions imposed upon what the particular structure or infrastructure of a remand centre or YJC might look like, provided that it is created for the purpose which the CYF Act requires.

(b) The capacity of the facility to meet s 482(2) entitlements is an evaluative matter against which there is no absolute or clear standard. A centre may be created that gives priority to particular aspects of detention and less prominence to others.

(c) The range of factors that are relevant to the capacity of a centre to fulfil its task are very much of a governmental nature that will depend on resources and other matters of policy ill-suited to judicial determination. The expression 'care and welfare' describes no more than the broad statutory purpose for which centres are to be established under s 478(c). Once a centre is established and populated content is given to the phrase by the rights and obligations conferred by s 482.[42]

(d) The capacity of a facility to deliver the statutory entitlements depends not only on the physical structure but also on the other resources, including staff, that will be needed. These are not matters of objective fact.

(f) No relevance can be ascribed to the fact that s 487 does not use the word 'satisfied'. That is so because the section does not set any criteria to which satisfaction could relevantly attach.

(g) The statutory purpose of providing for the care and welfare of detained children relates only to s 478(c) in respect to youth justice centres and not remand centres established in accordance with s 478(a). Otherwise, none of the facts said by the plaintiffs to be jurisdictional are mentioned in the provision conferring the power.

(h) Finally, the matters referred to in s 487, prohibiting certain conduct in the operation of a youth justice facility, cannot sensibly be described as 'facts'. The conduct in question cannot occur anterior to the operation of the facility. Given that each form of prohibited action requires the voluntary conduct of one of more officers of the defendants, the plaintiffs' argument that Grevillea is incapable of operating without infringing s 487 is absurd.

84 There is nothing in the express terms of s 478(a) and (c) or s 484 that suggests the matters in ss 482 and 487 are facts that, objectively, needed to exist before the powers under those provisions could be exercised.[43] The Court of Appeal's finding[44] - that on the proper construction of the CYF Act, the matters in s 482 were mandatory relevant considerations that the Minister was required to take into account when deciding to recommend to the Governor in Council that it make orders under s 478 -is inconsistent with the those matters being jurisdictional facts because, so long as a decision-maker has proper regard to a matter that is a mandatory relevant consideration the decision cannot be impugned.

85 The defendants submitted that the statutory language did not support the plaintiffs contentions in other ways. The entitlement under s 482(2)(a) is to have developmental needs catered for. It is not an entitlement to have developmental needs maximised, fulfilled or met to a particular standard in relation to a particular child, but only an entitlement that they be provided for. The jurisdictional fact would have be whether the centre gazetted was capable of being a centre at which reasonable efforts might be made to meet the detainee's needs. As soon as it is put that way the improbability of the construction advocated for by the plaintiffs becomes apparent. It will depend on an assessment of reasonable efforts on which minds might differ. That is so particularly where the concept of developmental needs is being considered in the context of incarcerated young people.

86 The ultimate question does not turn on the facts of this case or by reference to the evidence. The construction of the Act for which the plaintiffs contend must be that every time the power under s 487 is exercised, the Court can determine for itself, as a question of fact, the myriad of factors that go to 'capacity'; and that Parliament intended that that be so. The same issues of jurisdictional fact will need to be determined every time the s 487 power is exercised.

87 The defendants contended that this case is profoundly different to Plaintiff M70/2011 v The Minister for Immigration and Citizenship.[45] In that case the legislation empowered the Minister to declare that a specific country had procedures and protections necessary for adequately dealing with people seeking asylum in accordance with specified standards. The Court concluded that, objectively, whether or not Malaysian law had the relevant features were jurisdictional facts conditioning the Minister's power to make the relevant declaration. These were matters of legal obligation, rather than facts, that were readily ascertainable to exist objectively and ascertainable by the court, even if they were matters of Malaysian law or international law. By contrast, the matters in s 482 of the CYF Act are matters which necessarily arise in the course of consideration by the decision maker of the exercise of the power, as opposed to matters which must factually exist as preconditions to its exercise.[46]

88 Finally, the defendants submitted that the Governor's powers under s 478 have no express limits - they are simply to be exercised in good faith and for the purposes of the CYF Act - namely, for the establishment of corrective services as a means of making provision for children who have been charged with or found guilty of an offence.[47] The power is wide and unconstrained. It follows that whether or not the Secretary could meet her responsibilities under s 482, or otherwise, simply had no bearing on the validity of the Grevillea Orders, except to the extent that the Minister was obliged to take those matters into account when recommending that the Governor in Council make the orders.

89 In respect of the transfer decisions, the defendants submitted that the text, context and purpose of s 484 precluded the jurisdictional facts for which the plaintiffs contended on the basis of the submissions already noted.

90 There is nothing to suggest, on the plain words of the statute or otherwise, that the validity of the Secretary's warrant under s 484 of the CYF Act is conditioned in any way on the Secretary's compliance (or capacity to comply) with her duties under s 482 or the entitlements in that provision, or on the observance of the prohibitions in s 487. Rather, those duties (consisting of rights and responsibilities) and prohibitions are imposed for the purposes of the CYF Act, specifically making provision in relation to children who have been charged with, or found guilty of, an offence. This construction is plain from the temporal connotation of the words used in s 482 of the CYF Act: the relevant duties arise after a young person is detained in a relevant corrective service.

91 The Secretary has to exercise the power under s 484 having regard to the obligations set out in s 482(1)(a). The defendants submitted that this is not a jurisdictional fact, but a matter of mandatory relevant consideration, having regard to the nature of the duty. So much is clear from the decision of the Court of Appeal in Certain Children Appeal. Plainly, the Secretary could not make a decision under s 484 without regard to the duty under s 482(1)(a), and there is no allegation that she had done otherwise in this case.

92 The Secretary's powers under s 484 of the CYF Act have no express limits - they are simply to be exercised in good faith and for the purposes of the CYF Act - namely, for the transfer of children between corrective services as a means of making provision for children who have been charged with or found guilty of an offence.[48] The power is wide and unconstrained. It follows that whether or not the Secretary had met, or could meet, her responsibilities under s 482 of the CYF Act, or otherwise, simply had no bearing on the validity of any warrant issued under s 484 of the CYF Act.

93 The defendants submitted that there is simply nothing in the text, context, scope, subject matter or purpose of the CoW Act that could give any support to the plaintiffs' contention that the broad statutory purposes of the CYF Act, and rights provided under that Act, are jurisdictional facts or in any other way condition the express powers of the Governor under s 8B of the CoW Act.

The power to establish centres - CYF Act, s 478

94 The plaintiffs have failed to persuade me that, as a matter of proper construction of the Act, the particular matters on which they place reliance are jurisdictional facts. I reject this contention because each enabling power is cast in simple and direct terms, with the postulated jurisdictional facts properly characterised as mandatory relevant considerations to the exercise of the power. Garde J reached the same conclusion in Certain Children. As a matter of judicial comity, I ought to follow that decision unless I am satisfied that it is clearly wrong. I do not have that sense of satisfaction, rather, I am satisfied that Garde J's conclusion is right and, with respect, correctly reasoned. Subject to what follows, I am persuaded by the defendants submissions on this issue.

95 There are three important matters of context when considering the power in question. Dealing first with s 478 itself, the opening words 'For the purposes of this Act' have a more specific, or focussed, context. The relevant purpose of Chapter 5 of the CYF Act is to make provision in relation to children who have been charged with, or who have been found guilty of, offences. Closely associated with that purpose, Chapter 7 provides for the Children's Court of Victoria to continue as a specialist court dealing with matters relating to children. In understanding the exercise of powers under the Act it is desirable to bear in mind the other purposes of the Act, being to provide for community services to support children and families, and to provide for the protection of children.

96 Section 347 of the Act mandates that a child remanded into custody by a court or a bail justice, must be placed in a remand centre. Section 3(1) states that a 'remand centre' means a remand centre established under section 478(a). Sections 360 and 412, provide that in circumstances defined by s 412, a Court may convict a child and order that the child be detained in a youth justice centre. Section 3(1) states that a 'youth justice centre' means a youth justice centre established under section 478(c). The need for such centres arises from the provisions in Chapter 5. Thus the purposes of the Act that are engaged by s 478 are that the Executive provide the resources required for children remanded in custody under s 347 or the detention of children sentenced under s 412.

97 A second important aspect of context, evident from the purposes of the Act, relates to the nature of the powers allocated to the Governor in Council. The Act clearly distinguishes power that is to be exercised by the Governor in Council from power that is to be exercised in the administration of the Act, principally by the Minister and the Secretary or her delegate. The defendants accepted that decisions made by the Governor in Council are not immune from judicial review simply because of the status of the decision-maker.[49] The powers to be exercised by the Governor in Council are mostly concerned with appointments,[50] declarations,[51] or the allocation of governmental resources broadly to the purposes of the Act.[52] Many of these powers are found in Chapters 5 and 7 of the Act. Relevantly, the exercise of power under s 478 can affect the allocation of resources across government. That is precisely what the Governor in Council achieved when Grevillea was removed from the jurisdiction of DoJR and added to the jurisdiction of DHHS.

98 The powers under ss 478(a) and (c) of the CYF Act to establish youth justice centres and remand centres address the allocation of resources within the criminal justice system. This will necessarily include consideration of factors that are not personal to any particular detained individual. The fact that the power is in each case vested in the Governor in Council is contextually important. By contrast, decisions as to policies, administration, and operation of centres, day-to-day management of detainees, which primarily involve considerations relevant to each detainee's care and welfare, are left with other decision-makers, such as the Minister, but notably the Secretary (and her delegates), and the officers in charge of the relevant centre.

99 The task of establishing such a facility involves the assessment of complex facts and the formation of opinions on a potentially wide range of matters. The selection of the Governor in Council as the decision-maker for the s 478 powers is statutory recognition that the decision is one involving high-level considerations of general policy and the allocation of resources across government more broadly. That being the case, the statutory intention is that the decision-maker have the power to make a conclusive determination.

100 Finally, in terms of establishing the relevant context, Part 1.2 of the Act sets out principles that decision makers under the Act, as identified in Division 1, are required to consider in making any decision or taking any action under the Act. The principles are identified in Divisions 2 and 3. Division 2 identifies what are called 'best interest principles' and Division 3 identifies 'decision making principles'. The principles are intended to give guidance in the administration of the Act.

101 Section 9(2) expressly provides that the principles do not apply to decisions made, or actions taken, under Chapter 5. As I have noted, the powers of the Governor in Council and the Secretary, the exercise of which is impugned in this case, are found in Chapter 5. It follows, relevantly, that Parliament expressly determined that it did not intend that the Governor in Council, when exercising the power under s 478 to establish a centre, be guided by the principle that the best interests of the child must always be paramount as set out in s 10(1) and as amplified in ss 10(2) and 10(3). Section 10(2), for example, mandates that the best interests of the child will always require consideration of 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).

102 It also follows that that Parliament expressly determined that it did not intend that the Secretary or her delegate, when exercising the power under s 484 to transfer a person from a YJC to another YJC be guided by the principle that the best interests of the child must always be paramount, or by the decision making principles set out in s 11.

103 The plaintiffs submitted there is no question that the obligation of all persons exercising power under the CYF Act to act in the best interests of children and so as not to cause adverse consequences for vulnerable individuals is absolutely intrinsic to the rationale of the legislation, its construction and the values embedded in it. As a general proposition, that submission may readily be accepted, but it lacked focus on the specific powers under consideration and failed to grapple with the express carve-out created by s 9(2) of the Act. The plaintiffs' submission that where the exercise of a power will affect 'important' or 'transcendent' values it ought militate in favour of a fact being a jurisdictional fact was unable to overcome this important aspect of the statutory scheme.

104 That decisions to establish or abolish remand centres or YJC's are not subjected to the best interest principle, either by express statutory statement or by necessary implication, does no violence to the sentiments advocated by the plaintiffs. Rather, the context and purposes of the Act disclose a bright line when the power of the Governor in Council in respect of this function arises. From that context a statutory purpose is evident.

105 The foregoing context assists in understating the proper construction of the other phrase on which the plaintiff's submissions are founded - 'for the care and welfare of' - that appears in s 478(c). That phrase does not appear in s 478(a) in respect of remand centres, and the plaintiffs' contentions offer no analysis of the differences in the language employed in the two subsections. Rather, the submissions proceeded as if the care and welfare of detainees in a remand centre was expressed in subsection (a).

106 The statutory objective of detention in each case is, in fact, quite different. That phrase does not appear in s 478(a) because the purpose of a remand centre is to detain a child awaiting trial or sentence, or in transit, while detention in a youth justice centre is to serve a sentence imposed by a court under Part 5.3, Div 1 of the Act. In each case, the detainee is in the legal custody of the Secretary,[53] but plainly enough, detention is for different purposes and for differently defined periods. The point is that once a detainee is remanded or sentenced, the Secretary has different options for the accommodation of the detainee and the issue becomes one of day to day management.

107 Section 482(1) expresses the legislative intention as to choices to be made between the available services for remandees and sentenced children. Contrary to the plaintiffs' submission, it does not identify the paramount consideration of the Act. Section 482(2) provides that irrespective of the place of detention, persons detained have the entitlements specified in the section. I accept that those entitlements are expressions of concrete entitlements to proper care and welfare, but s 482(2) does not operate in the abstract, as the plaintiffs suggested construction of the Act requires.

108 As the defendants rightly submitted, the entitlements are enjoyed by persons who are detained, not by persons who may be detained. The Secretary's primary obligation, stated in s 482(1), to determine the form of care, custody or treatment which he or she considers to be in the best interests of each detained person can only arise when the person comes into the Secretary's legal custody after an order has been made by a court or a bail justice under the provisions already noted. Section 482(2) conditions the obligation of the Secretary in providing care, custody or treatment in a facility as provided for by the Act, being remand centres or YJCs.

109 As Garde J concluded, and the Court of Appeal confirmed, the relationship between s 478 (the power) and s 482(2) (the conditions) is that the entitlements in s 482 are a matter that the decision maker must have regard to, that is, the relationship is one of mandatory relevant considerations that must be taken into account when exercising the powers under s 478.

110 The plaintiffs used the language of the Court of Appeal in its reasons given in the Certain Children Appeal as a foundational plank to submit otherwise and to contend that the words 'for the care and welfare of persons' expressed a minimum statutory standard that preconditioned the exercise of the power to establish a centre. The submission effectively contended that the Court of Appeal construed s 478 as identifying in those words a fundamental non-negotiable attribute of a YJC or remand centre, a jurisdictional fact.

111 The plaintiffs' submissions regarding the Certain Children Appeal push the language used by the court out of its intended context and, in that sense, the plaintiffs attribute to the court conclusions that it did not express, or, if it did, conclusions that are obiter dicta. Significantly, the Court of Appeal was dealing with an appeal on grounds that challenged both the primary judge's finding that the November Orders in Council were invalid, and his Honour's declaration that the Charter was breached. The court recorded that at trial the plaintiffs argued, and lost, a contention that the purposes of the Act and of s 478, and some or all of the requirements and responsibilities in ss 482(1) and (3), and the entitlements in s 482(2), were jurisdictional facts. The plaintiffs had argued that the power in s 478 was only enlivened if those jurisdictional facts were satisfied.

112 There was apparently a notice of contention on this issue before the Court of Appeal which, given the court's findings was not required to be considered, the order recording that leave to cross-appeal was dismissed without adjudication on the merits.

113 Accepting that there may be overlap between a jurisdictional fact and a mandatory relevant consideration, the significance of the absence of jurisdictional fact as a ground to be considered by the Court of Appeal lies in the approach taken by the court to the task of statutory interpretation. The Court of Appeal made only a passing reference (by a footnote) to Plaintiff M70/2011 v Minister for Immigration and Citizenship, and did not identify its task to be to construe whether from the text, context and purpose of the statute read as a whole, the exercise of the statutory power under s 478 is conditioned by the existence of certain jurisdictional facts. The Court of Appeal did not approach the statute from that perspective.

114 The crux of the appellants' submissions was that in rejecting the respondents' jurisdictional fact contentions at trial the primary judge had erred in finding that the existence of the duties imposed on the Secretary under s 482(1) and the entitlements granted to detainees under s 482(2) are relevant considerations which must be taken into account before the power in s 478 can be exercised. The primary judge ought to have concluded that these were merely permissible considerations that may properly be taken into account but need not be.

115 When understood in the context of a dispute as to whether, on its proper construction, the duties and entitlements under s 482 of the Act were mandatory or permissible considerations, the passages from the Court of Appeal's judgment on which the plaintiffs rely are seen in a different light. Properly construed, those statements do not stand as clear authority for the construction of the statute for which the plaintiffs contend. Principally that is because s 478 does not introduce, for the consideration of the Minister or the Governor in Council, any temporal connection between establishment and occupation of the proposed centre.

116 I do not read s 478, either textually, or through the prism of context and purpose, as requiring the existence in a centre, at the time of its establishment by gazettal, of capacity in its built environment or in the resources, services, and policies to operate in that built environment, as a necessary pre-condition to the exercise of that power. I accept the defendants' submission that assessment of capacity is a prospective evaluative exercise. The capacity and operation of the centre must depend on a range of factors that do not exist before establishment.

117 I accept the plaintiffs' submission that a court being called upon to review the gazettal of a remand centre or youth justice centre for determination of jurisdictional fact will not be a common occurrence, but the prospective infrequency of the task is not convincing when construing the statute. Having regard to the Act as a whole, it is not evident that Parliament intended that complex matters related to the allocation of resources across government, and not concerned with the entitlements of individuals, should be determined by a court rather than the executive. The relevant decision as to the existence of jurisdictional fact suggested by the plaintiffs would be based on factors that do not exist until a detainee is transferred in to the centre. Once a person is deemed to be in the custody of the Secretary, he or she must make the determination required by s 482(1) and exercise the responsibility to make sure that the entitlements are complied with, and a fortiori, for the defendants officers and agents to observe the prohibitions set out in s 487.

118 Whether the gazetted centre would enable the Secretary to deliver the entitlements and discharge her duties is a matter for evaluation. There is no absolute or clear standard. Reasonable minds can differ as to what outcomes might be achieved. The capacity of a facility to enable the Secretary to deliver the entitlements and discharge her duties under the CYF Act is not limited to the nature of the physical structure but will also depend on the number of detainees, the staffing and other resources available at the facility and numerous other matters that must be contemplated, but need not be established, at the time of gazettal. These are all matters of context that, consistently with the authorities analysed by Kaye J in Shalom, tell against the contention that the power in s 478 must be construed as preconditioned to the jurisdictional facts contended for by the plaintiffs.

119 The point is, relevantly, that Parliament cannot be found by the text, context and purpose of the statutory power, to have intended that on each occasion of the exercise of the power, it would be for the court to determine for itself as a question of fact the merits of the issue of the capacity of the centre, whether only in its built physical state, or as a fully operating service, to enable the Secretary to deliver the entitlements and discharge her duties. Further, it is not apparent that Parliament intended that uncertainty would exist about the legality of detention of persons under the Act until such a court determination was conclusively made.

120 Finally, unlike in Certain Children, the plaintiffs also relied as a jurisdictional fact on the prohibitions in s 487. This section is removed from Part 5.7, being found in Part 5.8, Div. 2 of the CYF Act that regulates the management of detainees. This contention is misconceived. Each of the prohibited actions cannot be seen to occur as a natural and inexorable consequence of the features of the built environment or as a result of assumptions as to actions which may be taken against a detainee by the centre's administration. The prospect of prohibited actions taking place there cannot be postulated as integral to the facility to be gazetted. It is pointless to speculate that a service might be established with an unlawful policy, for example the use of isolation as a punishment contrary to s 487(a) of the Act. Were that to occur, the protections in s 482 provide the appropriate response. If a centre was to be gazetted on the basis of such a policy, the decision could be amenable to jurisdictional error on grounds other than jurisdictional fact.

121 For the reasons already discussed, I am not satisfied that s 484 of the CYF Act can be construed as requiring the facts alleged by the plaintiffs to objectively exist before the power to transfer a detainee from one facility to another can be exercised by the Secretary or her delegate. The context in which this power is exercised is different to that of s 478. Section 484 is found in Part 5.8 of the Act that regulates dealings with persons in detention. The power resides in the Secretary or her delegate and concerns the management or administration of detainees under the legal custody of the Secretary.

122 Although Garde J made no finding touching on the power to transfer because of his finding that the gazettal of Grevillea as a remand centre and a YJC was unlawful, and consequently the Court of Appeal did not consider the distinction between mandatory and permissible relevant considerations dictated by the statute in respect of this power, it is clear, as the defendants submitted, that in the exercise of the power of removal by transfer to another centre the Secretary is obliged by s 482(1)(a) to consider the best interests of the child being detained when determining the form of care, custody or treatment of the detainee whose removal is in issue.

123 By analogy, the Court of Appeal's analysis of ss 482(1) and 482(2) as mandatory relevant considerations in the exercise of the s 478 power is persuasive of the like conclusion in respect of the Secretary's power under s 484. I do not accept the plaintiffs' submissions as to jurisdictional facts conditioning the exercise of that power.

124 The syntactical presumption achieved by the noscitur a sociis rule that the plaintiffs seek to invoke by the reference to Bond is inapplicable in the identification of jurisdictional fact.[54] I reject the plaintiffs' contention that, notwithstanding the absence of any such indication in the CoW Act itself, the Weapons Exemption will be unlawful unless consistent with the objects and purposes of a separate statute that establishes and governs the facility in which the weapons may be deployed. The ordinary principles of statutory construction apply to determining what, if any, jurisdictional facts pre-condition an exercise of the power contained in s 8B of the CoW Act.

125 The natural and ordinary meaning of s 8B reveals no pre-conditions on the powers of the Governor in Council, such that would limit it by reference to another Act. The legislative meaning evident from text, context and purpose cannot be altered by the actions of the Executive in framing the terms of the Order. Further, as s 8B was inserted into the CoW Act, largely in its current form, by an amending Act in 2000 - five years before the CYF Act was enacted in 2005 - the plaintiffs' contention is effectively that the CYF Act impliedly amended the CoW Act after its enactment. This contention is without merit.

126 The plaintiffs' submission was not supported by citation of any authority. They were unable to point to any case that supported the proposition that the existence of a jurisdictional fact can be founded other than in the Act that enables the power under consideration, and may be found in another and different Act identified by the manner in which the power was exercised.

127 For these reasons, issues 1, 5, and 12 are 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 -

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

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.

128 By reason of those findings, it is unnecessary to consider issues 2, 6, and 13.

129 I turn now to consider issues 7 and 8. Issue 7, it will be recalled, was whether 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, the Secretary was obliged to afford procedural fairness to the person to be removed.

130 The transfer decisions remaining in issue concerned Marco Gillespie-Jones and Andrew Pound. The plaintiffs challenged these decisions on a separate ground of jurisdictional error - that the decision maker did not afford procedural fairness to each of them - with the consequence that each transfer decision was invalid. The defendants submitted that the children were not entitled to procedural fairness in respect of the transfer decisions, relying on Garde J's reasoning in Certain Children to that effect.[55]

131 The plaintiffs submitted that the power of the Secretary or her delegate to remove a child from one remand or youth justice centre to another is a discretionary power vested in her by s 484 of the Act. While conceding that the decision making principles in ss 10 and 11 of the CYF Act do not apply to decisions made under Chapter 5, and consequently to the transfer decisions, the plaintiffs contended that it did not follow that procedural fairness was excluded.

132 The plaintiffs submitted that the Court of Appeal's reasoning in the Certain Children Appeal precluded the defendants' contention that the rights of children detained are identical at each of Parkville, Malmsbury and Grevillea. To the extent that a decision to transfer a child to Grevillea might result in a change in the extent to which their entitlements can be met, whether for reasons specific to the situation of one child, or more generally, it is a decision that affects the child's statutory entitlements and interests. Given that this is a statutory power affecting the interests of a child, including the satisfaction of his statutory entitlements, and given that there is no express statutory language to exclude procedural fairness, it follows that procedural fairness must be afforded for the decision to be lawful.

133 The plaintiffs submitted that I ought reach a different conclusion from that of Garde J on this issue. Moran v Secretary to the Department of Justice and Regulation,[56] on which his Honour relied, was distinguishable from the plaintiffs' position. Moran concerned the transfer of an adult prisoner from one part of a prison to another part of the same prison. Crucial to that decision was first, an express statutory power for transferring prisoners (that is, a power corresponding with s 484) was absent and, secondly, no express statutory rights were affected by the internal transfer. In the context of the CYF Act, there are express statutory rights set out in s 482(2) of the Act and the Court of Appeal has made it clear, the plaintiffs submitted, that the place where a person is detained will impact upon those rights.

134 Although the Court of Appeal was not concerned with transfer decisions, in the context of construing whether satisfaction of the entitlements in s 482 was a mandatory relevant consideration for the exercise of the power under s 478, the Court of Appeal relevantly stated:[57]

The effect of s 482 is that [the place to which the child is transferred] has to be a place where those entitlements can continue to be enjoyed and the Secretary's duties can continue to be performed.

135 The plaintiff submitted that ID, PF and DV v Director General, Department of Juvenile Justice,[58] which was not cited to Garde J, was directly applicable. In that case, the Supreme Court of New South Wales considered the legality of a transfer of several plaintiffs from juvenile detention into an adult prison. Johnson J held that a duty of procedural fairness applied to a transfer decision, and that the transfer power had to be read according to the objects of the Children (Detention Centres) Act 1987 (NSW), particularly the requirement that 'the welfare and interests of detainees shall be given paramount consideration.'[59] The plaintiffs submitted that the resonance between that finding and the reasoning of the Court of Appeal in the Certain Children Appeal referred to above was striking.[60]

136 The content of procedural fairness depends on the decision being made and the rights affected by the decision.[61] It followed that, notwithstanding the express exclusions in s 8(4) and s 9(2) of the Act, its purposes nevertheless supported a construction that a child has a right to be heard before the statutory power under s 484 was exercised by the Secretary because Grevillea was a place where the child's rights under the Act may be materially impaired. The plaintiffs did not contend that the children should be allowed to choose where they are detained,[62] but argued that in the circumstances the content of the right permitted that a child be heard as to any personal circumstances or other reason that might have made removal to Grevillea undesirable, particularly circumstances related to whether care or welfare could be provided to that child or the child's developmental needs could be catered for.

137 The plaintiffs submitted that many reasons might explain why the circumstances of a particular child might mean that a transfer to Grevillea could adversely impact on his care and welfare, compared with other children. For example, it might be too difficult for family or private psychologists to travel to Grevillea to visit or the child might fear for his safety because of the presence of a particular detainee or staff member at Grevillea.

138 The defendants accepted that in the absence of a clear contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions.[63] The transfer power relevantly affected persons who have been remanded, or who are detained in a youth justice centre, by an order under the CYF Act. In the correctional context, it is a natural consequence that persons on remand or detained under sentence lose their liberty. As Pritchard J observed in Bentley v Chief Executive Officer of the Department of Corrective Services,[64] a prisoner does not have a right to reside in a particular prison, and where a prisoner is placed will necessarily depend upon a variety of considerations, including considerations unrelated to the prisoner in question. The defendants submitted that the only relevant entitlement is to be detained in a facility that is able to meet the requirements of s 482(2) of the CYF Act. That section falls well short of conferring a choice as to the facility in which the child ought to be detained.

139 Garde J held that there was no right to procedural fairness with respect to a transfer decision made under s 484 of the CYF Act,[65] following Moran.[66] Moran followed Nettle JA's (as his Honour then was) observations in Anderson v Pavic,[67] as to the nature of administrative decisions made in the running of corrections facilities, particularly his Honour's observation that it is:[68]

[U]nlikely that Parliament should have intended that the courts sit in judgment upon questions of fact routinely decided by prison authorities in the course of management and administration of the prison for which they are responsible.

140 The defendants submitted that given the width of the statutory text and the purposes, discussed earlier, of the transfer power, the reasoning in Moran is directly applicable to the present case, and Garde J was correct to follow it. The power is to transfer to another facility established under s 478 of the CYF Act, and to which the same guarantees in s 482 of the CYF Act apply. The CYF Act does not create any right to have accommodation in a particular facility. A transfer decision made under s 484 does not affect any legal right or interest of the young person because entitlements and protections conferred by ss 482 and 487 of the CYF Act are not altered by the transfer. There is no diminution in the quality of the custodial setting to which the transferee is to be sent. The present situation may be readily distinguished from that considered by Johnston J in ID.

141 The defendants submitted that Barreto v McMullan,[69] a decision of the Court of Appeal of Western Australia, supported the reasoning in Moran. In Barreto, the question was whether the exercise by a prison superintendent of the power in s 36(3) of the Prisons Act 1981 (WA) to issue orders 'necessary for the good government, good order and security of the prison' carried an obligation to afford procedural fairness to an affected prisoner. Buss JA, with whom Martin CJ and Mazza JA agreed, held that it did not as a person subject to remand or detention does not have the rights and privileges of an ordinary citizen to select his or her residence within the correctional system. This was said to be a 'practical corollar[y] of being lawfully detained in a correctional centre'.[70] Buss JA also stated that the 'practical context in which a superintendent may have to consider whether to exercise the power under s 36(3) is significant', and noted that 'it may be necessary in some circumstances for a superintendent to make decisions and issue orders quickly with a view to ensuring the welfare, safe custody or supervision of prisoners or prison staff ...'.[71]

142 Buss JA also observed that 'the consequences in the day to day management and control of a prison if a superintendent was bound to accord procedural fairness to prisoners in connection with managerial or supervisory decisions, as distinct from punitive or disciplinary action, would be most inconvenient'.[72]

143 The defendants submitted that these observations were apposite, supporting their contention that, properly construed, the transfer power under s 484 of the CYF Act does not attract the obligation to afford procedural fairness. The observation that the power might need to be exercised quickly was particularly relevant, as the present circumstances, when broadly considered, demonstrated. Transfers to other facilities could need to be effected quickly where one facility becomes temporarily unavailable and/or unsuitable for whatever reason.

144 The defendants further submitted that a denial of procedural fairness will not lead to a remedy on judicial review because the decision under challenge did not have legal effect (or was not a step in a process capable of altering legal rights, interests or liabilities).[73] The powers in Part 5.8 of the CYF Act do not affect individual rights and entitlements. The decisions to transfer the plaintiffs to Grevillea in accordance with s 484 of the CYF Act cannot attract relief in the nature of certiorari because there is no legal consequence to the decision that is amenable to judicial review.[74] It also followed that the Secretary could not be obliged to afford a plaintiff procedural fairness before making any decision to transfer him to Grevillea.[75]

145 Finally, the defendants submitted that even if the power in s 484 were conditioned on the observance of procedural fairness, a want of procedural fairness would not render unlawful the ongoing detention of a plaintiff at Grevillea.[76] That plaintiff would remain in the lawful custody of the Secretary, at a remand facility established under s 478 of the CYF Act.

146 The principles applicable to the obligation to provide procedural fairness were recently stated by a unanimous High Court in Minister for Immigration and Border Protection v SZSSJ.[77] It is settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of the common law principles of statutory interpretation. A statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to do so on condition that the power is exercised in a manner that affords procedural fairness to that individual, unless the presumption is excluded by very clear words in the statute.[78] If the exercise of statutory power is conditioned on observance of the rules of procedural fairness it follows that a failure to comply with the rules will render a decision made, in purported exercise of the power, invalid.[79] When it is asserted that the rules of procedural fairness do not condition the exercise of a statutory power, the question is whether the legislation, on its proper construction, displays a legislative intention to exclude the rules.[80] Such an intention may be found, for example, where compliance with the rules in respect of the exercise of a statutory power will 'necessarily frustrate or be inconsistent with the exercise of the power'.[81]

147 In ID v Director General, Department of Juvenile Justice,[82] Johnson J construed the power to make administrative decisions under s 28 of the Children (Detention Centres) Act 1987 (NSW) to order transfers of offenders under the age of 21 from juvenile detention centres to adult correctional centres as requiring that the Director General afford procedural fairness to the transferees.

148 Referring to the legislative scheme in place in NSW, comparable with the CYF Act, Johnson J stated:[83]

There is an entirely different statutory framework in the Children (Criminal Proceedings) Act and the Children (Detention Centres) Act which, in my view, places a [transfer decision] apart from the line of authority outlined [by Counsel concerning prison management decisions in adult facilities]. Here, there is an elaborate and different statutory scheme.

...

The statutory scheme underpinning s 19 of the Children (Criminal Proceedings) Act recognises that a more beneficial and positive custodial setting is available in juvenile detention, including resources for rehabilitation, education and training consistent with the objects laid down in s 4 of the Children (Detention Centres) Act. So much has been recognised in the cases..., [that] there are obvious and identifiable detriments which can apply if a juvenile offender is transferred to the adult prison system. I accept the submissions of [Counsel] in this respect in connection with the identifiable detriments which could befall the [plaintiffs].

And later, his Honour stated that the:[84]

... transfer power is not to be compared with a change from one classification to another of an adult prisoner in the adult prison system. Nor is it to be equated with transfer from one Juvenile Justice Centre to another... A s 28 transfer order is not a prison management decision. Rather, it involves a fundamental change in the nature and quality of detention to which the detainee will be subject, with the likelihood, in the case of [two of the plaintiffs], that a longer period in custody will result.

149 In these passages, two reasons why the plaintiffs' reliance on ID was misplaced become apparent. ID does not support the contention that transfer decisions under s 484 are conditioned on affording the transferees procedural fairness, specifically, the right to be heard in advance.

150 First, the transfer decisions in the present case did not affect any legal right or interest in the relevant sense of the child being transferred. In ID, the transfer order was not a prison management decision, but rather 'involve[d] a fundamental change in the nature and quality of detention to which the detainee will be subject',[85] including an effective change in status from juvenile 'detainee' to adult 'inmate' under different legislative schemes. The plaintiffs' submission in this case was not premised on a legal change of a fundamental nature, but on a disputed factual contention that detention at Grevillea is in harsher circumstances than detention at Parkville or Malmsbury.

151 In that sense a transfer could not involve the kind of fundamental change in conditions contemplated in ID. The submission strays from the task of assessing by reference to the proper construction of the statute whether a right to procedural fairness exists. As the defendants submitted, the legal status of the plaintiffs remains unchanged as a result of the transfer decision. The only relevant entitlement under the CYF Act is to be detained in a facility established under s 487 and that the Secretary determine whether she considers the form of care, custody and treatment at Grevillea to be in the best interests of the transferee.

152 Secondly, s 484 in its legislative context confers a broad power on the Secretary to transfer children between relevant correctional centres. That section is in Part 5.8 of Chapter 5 of the CYF Act. Chapter 5 is headed 'Children and the Criminal Law' and Part 5.8 deals with 'persons in detention'.[86] As already discussed, and similarly to the separate and distinct statutory scheme in place in NSW, the CYF Act makes special provision in Part 1.2 for best interest principles and decision making principles that are intended to give guidance to the administration of the Act. However, by virtue of sub-sections 8(4) and 9(2) the principles are expressly excluded from application in matters found in Chapter 5. No such excision is apparent in the NSW legislation.

153 The express removal of the principles found in Part 1.2 of the CYF Act from application to the transfer decisions, amongst all of the other powers exercisable under Chapter 5, has the necessary effect that such decisions need only come within the broader legislative purpose of making provision for children who have been charged with or found guilty of an offence.[87] The routine course of management and administration of the detained children in appropriate centres remains as the prominent purpose of the power.[88]

154 A final point of distinction between ID and this case, and one which was important to Johnson J's conclusion, is that the sentencing judge ordered that the plaintiffs serve their sentences as juvenile offenders rather than in an adult correctional facility. Due to that fact, each transferee had a 'legitimate expectation' that so long as he behaved appropriately in a juvenile detention centre, he would not be subject to transfer.[89] While the position is sufficiently clear,[90] that the concept of legitimate expectation is not determinative, it is relevant that no comparable legitimate expectation arises in this case.

155 For these reasons 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. Issue 7 is resolved against the plaintiffs. It is unnecessary to consider issue 8, save to record that the defendants did not submit that the relevant plaintiffs were heard by the Secretary's delegate before removal to Grevillea was warranted.

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

156 I turn now to consider issues 3, 4, 9, 10, 11, 14 and 15.

157 At the time that the Grevillea Orders were made on 29 December 2016, Garde J's decision in Certain Children informed the decision maker that certain human rights were engaged in the separate, but related, decision making process it had undertaken in November 2016. Garde J found that the best interests principle under s 17 of the Charter had been engaged and that the rights under ss 10(b) and 22(1) of the Charter had been relevantly engaged and breached by the defendants. His Honour concluded that the Orders in Council were unlawful under s 38(1) of the Charter, and made a declaration to that effect.[91] His Honour's findings were appealed, however the Court of Appeal adjourned the challenge on the Charter issues. Due to the revocation of the November Orders in Council, Charter issues were not determined.[92]

158 With regard to the engagement of s 17(2), the protection of children in their best interests, Garde J concluded as follows:[93]

I find that the decisions embodied in the Orders in Council engage s 17(2) of the Charter. They directly affect young persons in many ways. The establishment of a new remand centre and youth justice centre within the walls of Barwon Prison has widespread ramifications for the young persons who may be transferred to these facilities. They include the sense of security and insecurity felt by the young persons, and the level of physical security. They include physical, social, emotional, intellectual, cultural and spiritual impacts. They include the capacity of the new centre to receive visits from parents, relatives, friends and legal advisors, and affect the ability to meet medical, religious and cultural needs. They include the capacity of the young person to receive information and make complaints about the standard of care, accommodation and treatment afforded to the young person.

These decisions engage a young person's right to be protected in his or her best interests as the evidence in this proceeding makes plain.

159 Garde J also found that on the evidence before him one or more of the children detained at Grevillea had been subject to an unjustified breach of the rights under ss 10(b) and 22(1) of the Charter, being the protection against cruel, inhuman or degrading punishment and the right to be treated with humanity and inherent dignity of the person, at least in the first two weeks of its occupancy as a remand centre.[94]

160 Breach was found because the decision making process leading to the making of the November Orders in Council did not involve any consideration or evaluation of the human rights of young persons to be transferred to Grevillea. Garde J stated:[95]

This is not a case where there is doubt as to whether the consideration is given was proper consideration. Rather there is no sign that any consideration was given to Charter rights or human rights at all.

His Honour concluded that there was no evidence of consideration of the effect on the human rights of occupants of the use of a maximum security adult prison building as a remand centre for young persons or as a youth justice centre, the potential impacts on the young persons who would occupy that place, nor how the unit would function or whether services, such as schooling, could be provided.[96]

161 Garde J held that November Orders in Council were substantially incompatible with the human rights of the plaintiffs.[97]

The Department's evidence and position is that Parkville was seriously damaged and significant capacity was lost. The Department says that this justified the establishment of a remand centre and youth justice centre at Barwon Prison, and that what the Minister did, she had to do. Neither the Minister nor anyone else turned their minds to the impact of the establishment of the new facilities at Barwon Prison on young persons such as the plaintiffs. Their thoughts were directed at coping with the circumstances at Parkville, and the pursuit of their view that tougher measures were needed and that the perpetrators of the damage had to face serious consequences.

As a result, the impact on the human rights of persons such as the plaintiffs was unplanned and largely unforeseen. It is not a situation where a meticulous decision-maker fully evaluated the human rights in question coming to a careful and controlled decision limiting the impact on human rights.

Rather the impacts on human rights were collateral and unintended in the circumstances that occurred. They were not proportionate. There was no diligent or methodical analysis of the nature of the human rights, the purpose, nature, extent or importance of any limitation. There was no consideration as to whether there were less restrictive means available. The consequences were serious, as I have set out above.

I conclude that the Minister's recommendation and decision was substantively incompatible with human rights including those of the plaintiffs. Certainly, what was authorised by the Minister and done exceeded the reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom after taking into account the relevant factors set out in s 7(2) of the Charter itself.

162 Having invalidated the November Orders in Council, his Honour did not need to consider the issues raised in respect of subsequent transfer decisions, including in respect of the alleged charter breaches.[98]

163 It follows that the declaration of this court, which had not and would not be set aside by the Court of Appeal, made plain the need for the decision maker to give proper consideration to Charter rights, and the standing of the judgment was acknowledged by the decision maker.

164 In the present proceeding the Charter grounds proceeded on a different evidentiary footing. The Charter implications of the relevant decisions were considered by the relevant Ministers and by the Secretary's delegate. For example, the Secretary of DHHS, Ms Kym Peake, gave evidence of the decision making process and produced a copy of the Brief provided to the Minister that explained the advice on which the Minister, and the Governor in Council, acted. The documents in support of the brief included:

(a) A document titled 'Assessment for the purposes of s 38(1) of the Charter: Proposal to make fresh Orders in Council to establish Grevillea Youth Justice Precinct as a Youth Justice and Remand Centre' prepared by the Victorian Government Solicitors' Office ('the Charter Assessment'); and

(b) A document titled 'Current conditions at Grevillea Youth Justice Precinct; 29 December 2016', being an analysis of the capacity for the Secretary to meet her statutory obligations at Grevillea based on the conditions existing as at 29 December 2016 ('the Current Conditions Assessment').

I will come to Ms Peake's evidence and those documents in detail shortly. First I will set out the relevant sections of the Charter on which submissions were based and identify the rights under the Charter, and their scope, that were engaged by the conduct and decisions being challenged under s 38(1).

165 The main purpose of the Charter is to protect and promote human rights. Section 1 states, relevantly:

1. Purpose and citation

...

(2) The main purpose of this Charter is to protect and promote human rights by -

(c) imposing an obligation on all public authorities to act in a way that is compatible with human rights;

166 Part 3 of the Charter provides for the application of human rights in Victoria. Relevantly, s 38 of the Charter imposes obligations on public authorities to comply with and to have regard to the human rights enshrined in Part 2 of the Charter. The defendants to this proceeding were, at all relevant times, 'public authorities', within the meaning of s 4 of the Charter, and subject to the requirements in s 38(1) of the Charter. [99]

167 Section 38(1) of the Charter provides that it is unlawful for the defendants to:

(a) act in a way that is incompatible with a human right; or

(b) fail to give proper consideration to a relevant human right.

The plaintiffs invoke both limbs. The section reads:

38 Conduct of public authorities

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

168 The Charter recognises that human rights are not absolute and may be limited, according to a standard of demonstrable justification found in s 7(2). What is 'incompatible' with a human right under s 38(1) is accordingly assessed by reference to s 7(2) of the Charter, described by Chief Justice Warren as 'an expression of the doctrine of proportionality'.[100] The subsection reads:

7 Human rights - what they are and when they may be limited

...

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

169 The plaintiffs contended that the following sections identified the relevant rights in respect of the challenged decisions.

10 Protection from torture and cruel, inhuman or degrading treatment

A person must not be -

...

(b) treated or punished in a cruel, inhuman or degrading way; or ...

17 Protection of families and children

(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

(2) 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.

22 Humane treatment when deprived of liberty

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

...

(3) An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.

23 Children in the criminal process

...

(3) A child who has been convicted of an offence must be treated in a way that is appropriate for his or her age.

25 Rights in criminal proceedings

...

(3) A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child's rehabilitation.

170 The plaintiffs contended that certain acts and decisions that have resulted in their detention in Grevillea were unlawful under s 38(1) of the Charter on the basis that they were incompatible with the plaintiffs' human rights identified in ss 10(b), 17(2), 22(1), 22(3), 23(3) and 25(3) of the Charter.

171 I start by noting that the relevant acts and decisions identified by the plaintiffs are -

I will now state the principles I am applying in the assessment of Charter compatibility.

172 As set out above, s 38 of the Charter imposes obligations on public authorities to comply with and to have regard to the human rights enshrined in Part 2 of the Charter. None of the rights in the Charter is absolute. Section 7(2) of the Charter provides that human rights may be subject to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, having regard to all relevant factors, including those set out in the sub-section.

173 What is relevant under s 38(1) of the Charter when determining whether there has been an unlawful act is the court's objective assessment of compatibility in the actions of a public authority or of its decision making process.

174 The VEOHRC, as Intervener, submitted that a useful road map for assessing incompatibility under s 38 of the Charter is for the Court to consider a number of questions:

(a) is any human right relevant to the decision or action that a public authority has made, taken, proposed to take or failed to take? (the relevance or engagement question);

(b) if so, has the public authority done or failed to do anything that limits that right? (the limitation question);

(c) if so, is that limit under law reasonable and is it demonstrably justified having regard to the matters set out in s 7(2) of the Charter? (the proportionality or justification question);

(d) even if the limit is proportionate, if the public authority has made a decision, did it give proper consideration to the right? (the proper consideration question);

(e) was the act or decision made under an Act or instrument that gave the public authority no discretion in relation to the act or decision, or does the Act confer a discretion that cannot be interpreted under s 32 of the Charter in a way that is consistent with the protected right (the inevitable infringement question).

No party contended that the inevitable infringement question arose for consideration.

175 In Earl Baker (a pseudonym) v DPP & Ors,[101] the Court of Appeal recently observed:

Turning to the question of whether there has been a breach of Baker's rights under the Charter, it is useful to recall that a helpful (although not mandatory) approach is to consider first whether a particular right relied upon has been 'engaged' in the circumstances of the case; secondly, whether the public authority has 'limited' or interfered with the right by its action or inaction; and thirdly, whether any limitation imposed is reasonable and justified in the circumstances...

The justification question involves an assessment made by reference to those factors identified in s 7(2) of the Charter...

Once a human right is identified as limited by the action of a public authority, the burden is on the justifying party to show that the limitation is 'demonstrably justified' having regard to the specific matters identified in s 7(2) of the Charter.[102] In light of what must be justified, the standard of proof is high.[103]

176 In Bare v Independent Broad-based Anti-Corruption Commission,[104] Tate JA described s 38(1) of the Charter as containing both a substantive limb, which is concerned with whether an act of a public authority is incompatible with a human right, and a procedural limb, which is addressed to the decision-making process that was undertaken in respect of a particular decision.

177 The substantive obligation requires public authorities in acting, failing to act, or proposing to act, not to limit human rights unless that limitation is a reasonable limit that is demonstrably justified in a free and democratic society based on human dignity, equality and freedom. The procedural obligation is a duty on public authorities as decision makers to give proper consideration to relevant human rights. The procedural and substantive limbs of s 38(1) of the Charter are cumulative. That is, in making a decision, a public authority must both give proper consideration to engaged human rights and reach an outcome that is, in substance, compatible with those rights.

178 While it is unlawful for a public authority to breach either obligation in s 38(1), that unlawfulness does not of itself give rise to Charter invalidity and, in relation to a decision, does not constitute jurisdictional error.[105] Where s 38(1) unlawfulness is established in a judicial review proceeding such as this, the relief the court may grant is discretionary.

179 Charter rights are engaged whenever a Charter right is relevant to a decision or action that a public authority has made, taken, proposed to take or failed to take. The threshold for identifying the engagement of a Charter right is low. After construing rights 'in the broadest possible way',[106] a public authority must understand in general terms how Charter rights may be relevant. The relevance may be that the right is interfered with (i.e. a negative effect) or promoted.

180 The defendants contended that, unlike the procedural limb of s 38(1), the application of the substantive limb cannot involve the engagement of rights at an abstract level. Neither the establishment of Grevillea as a youth justice centre and youth remand centre, nor the making of the weapons exemption, was of itself capable of engaging human rights for the purposes of the substantive limb of s 38(1) of the Charter, because neither of these acts or decisions directly affected the human rights of any of the plaintiffs or of any other person. Consequential effects of an act or decision that may later occur cannot be taken into account on the assessment.

181 The defendants' submission was developed in the following way. The establishment of Grevillea was not, of itself, an act that directly affected the human rights of any of the plaintiffs, or indeed any person. Rather, it gave Grevillea the legal status of a place at which a child on remand or serving a sentence could be detained. That in turn gave rise to the possibility of a range of subsequent acts or decisions that might directly affect the rights of the plaintiffs and others. A decision to place a child at Grevillea, the conditions of detention there, and treatment during detention are all matters that might affect an individual child's human rights. These matters are, however, distinct from the initial establishment of Grevillea as a place of detention. The plaintiffs impermissibly conflate the establishment of Grevillea with subsequent decisions and actions concerning the plaintiffs and other children detained there.

182 The establishment of a youth justice facility under s 478 of the CYF Act takes place in the context of the extensive legal protections that exist for those who may be detained there. The CYF Act contains numerous such protections: in particular the duties, entitlements and responsibilities in s 482, the prohibition of the actions set out in s 487 and the limits on the use of isolation in s 488. Further, the Charter applies to the Secretary and her delegates when making a decision to place a child at Grevillea, to the General Manager of the Grevillea Unit and to Youth Justice and Corrections Victoria staff in their day to day dealings with children at Grevillea. Each of those persons is a public authority for the purposes of the Charter: each must give proper consideration to human rights in making a decision and none may act in a way that is incompatible with human rights. Legal remedies are available in respect of failures to observe any of these legal protections. With the exception of the challenge to the Transfer Decisions, those remedies were not sought in this proceeding.

183 It may be accepted that proper consideration of relevant human rights can take place at an abstract level, by identifying how a decision might engage the rights of persons who are likely to be affected by it.[107] The defendants submitted that this is not the case, however, in relation to the substantive obligation in s 38(1) not to act in a way that is incompatible with human rights. Only human beings have human rights,[108] and whether an act is incompatible with human rights can only be determined by reference to its effect on actual human beings.

184 Where a person seeks relief under s 39 of the Charter in respect of an act said to be incompatible with human rights, no remedy may be granted unless the act in question affects the human rights of that person. The plaintiffs in this case can only obtain relief under s 39 in respect of an act that unjustifiably limits their own human rights. They do not have standing to vindicate human rights in the abstract.

185 On that basis, the defendants submitted, there is no need to consider whether the Grevillea Orders limited any of the human rights relied on by the plaintiffs.

186 A like submission was put in respect of the Weapons Exemption. The defendants submitted that making the Weapons Exemption was not, of itself, an act that directly affected the human rights of any of the plaintiffs, or indeed any person. Rather, it lifted the prohibition, relevantly, in s 5AA of the CoW Act on possessing, carrying or using extendable batons and OC spray in a particular place. The exemption was granted only in respect of specific prison officers, for the purpose of ensuring the security or good order of Grevillea or the safety and security of any person there, and subject to strict conditions. The evidence showed that SESG officers had already been permitted to possess, carry and use extendable batons and OC spray at Grevillea, pursuant to a Chief Commissioner's approval under s 8C of the CoW Act.

187 The effect of the Weapons Exemption was that it continued to be permissible for SESG officers to possess, carry and use those weapons at Grevillea, and it became permissible for ERG officers to do so. This gave rise to the possibility that the weapons might be used against young people detained at Grevillea, and of secondary exposure to OC spray. In the event that this occurred, it would be a separate and distinct act from the Weapons Order. As in relation to the Grevillea Order, the defendants contended that the plaintiffs had conflated the decision to grant the exemption with the subsequent use of OC spray by prison officers.

188 As I will later explain when considering the evidence, the Weapons Exemption was made in the context of careful regulation of the use of extendable batons and OC spray at Grevillea. Specifically:

(a) It was a condition of the exemption that prison officers performing duties at Grevillea do so in accordance with the CYF Act, which includes the protection against prohibited actions in s 487.

(b) Duties must also be performed in accordance with the Operation Order for Emergency Response to Grevillea Unit. The SESG is only to be deployed in relation to incidents that threaten the security or good order of Grevillea or the safety and security of detainees at Grevillea, where the management and resolution of the incident is beyond DHHS's capabilities. ERG officers are only to use response powers where there is an incident that poses an imminent threat to the security or good order of Grevillea, and they consider it reasonable and necessary in order to protect life and to defend themselves or other people. Guidelines for the use of OC spray are set out in the Operation Order, including the presence of suitably trained medical personnel and decontamination procedures.

(c) SESG and ERG officers are subject to the Charter, and must not act incompatibly with human rights in performing their duties at Grevillea.

189 The defendants noted that while legal remedies are available in respect of failures to observe any of these legal protections, those remedies were not sought in this proceeding.

190 I do not accept the defendants' foregoing submission for the following reasons. As VEOHRC correctly submitted, it is not necessary for an identifiable individual to be affected in order for a human right to be engaged so as to trigger the obligations imposed on public authorities by s 38(1). This conclusion applies equally to the substantive obligation imposed by s 38(1), just as it does to the procedural obligation. A potential effect on the rights of a class of persons is sufficient for a Charter right to be engaged by an act (including a proposal to act) of a public authority, or the making of a decision by a public authority. That said, care will be required in ascertaining who may seek relief or a remedy from the court in respect of the act or decision, and whether the controversy before the court is sufficiently concrete for the grant of relief or a remedy.

191 There is a distinction between the obligations imposed on public authorities (by s 38(1)), and the right of a particular person to seek a particular form of remedy or relief (under s 39(1)). Thus, in a contemplated situation there could be a breach of s 38 in the 'general' sense, but particular individuals might not be able to bring a legal proceeding to seek relief or remedy in respect of the breach. Whether a particular person may do so is answered by s 39(1): Is the person one who, otherwise than because of the Charter, 'may seek' the relevant form of remedy or relief in respect of the same act or decision on a ground that it was unlawful.

192 The defendants contended that the standing requirement imposed by s 39 supported their argument that rights cannot be engaged at the general or abstract level for the purposes of s 38(1). Relief under s 39 may only be granted to a person in respect of an act that affects the human rights of that person. The plaintiffs in this case can only obtain relief under s 39 in respect of an act that unjustifiably limits their own human rights. They do not have standing to vindicate human rights in the abstract. On that basis, the defendants submitted, there is no need to consider whether the Grevillea Order or the Weapons Exemption limited any of the human rights relied on by the plaintiffs.

193 However, as VEOHRC submitted, this contention conflated distinct concepts. Section 38(1) clearly has an important function to perform even if there should happen to be no particular litigant present or willing to institute a proceeding. The imposition of a standing requirement does not support a narrow interpretation of s 38(1). Rather, it supports a broad interpretation of s 38(1), because Parliament placed appropriate boundaries on the ability of litigants to agitate Charter compliance issues through s 39(1), and it is unnecessary to look for a parliamentary intention to have done so in the text of s 38(1).

194 Secondly, the statutory text supports the notion that compatibility with rights in the Charter applies to 'general' acts and decisions of public authorities, even in the absence of a particular person or persons being directly affected:

(a) The Charter, when s 38(1) is read with s 3, makes it unlawful for a public authority to propose to act in a way that is incompatible with human rights, a concept that cannot require an existing direct effect on an individual.

(b) The language defining the rights in Part 2 is consistent with a broad and general operation. For example, s 17(1) of the Charter refers to 'every child'. Even where the language of the Charter refers to a particular person (for example, s 10 of the Charter refers to 'a person'), s 6(1) of the Charter states that 'all persons have the human rights set out in Part 2'.

(c) Section 28 of the Charter requires statements of compatibility identifying whether new Bills are compatible with human rights. Axiomatically, such statements will not consider the human rights of an individual.

(d) Section 36 empowers this court to make a declaration of inconsistent interpretation if a question of law arises 'that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter'. The provision enables the court to decide if a statutory provision cannot be interpreted consistently with Charter rights. This jurisdiction posits a general question, irrespective of whether a particular individual is directly affected.

195 Thirdly, the establishment of a youth justice centre or remand centre by administrative order is capable of both interfering with or promoting rights protected in the Charter. It may even do both at the same time, in respect of different rights. For example, s 17(2) is a relevant right because children can be detained in a YJC. The fact that the order creates a new place of detention also makes other rights relevant, for example, s 22(1) of the Charter protects every person's right to humane treatment when deprived of liberty. The fact that no child may yet be detained at that YJC is not to the point. Parliament in enacting s 38(1) of the Charter clearly intended that human rights would be considered from the early stages of the development of government policy, which by its nature will involve some generality.[109]

196 Fourthly, the Weapons Exemption illustrates the same point. Administrative orders permitting prison officers to possess, carry and use extendable batons and OC spray may also engage Charter rights, regardless of whether the powers are used. For example, s 22(1) of the Charter protects every person's right to humane treatment when deprived of liberty. Section 17(2) protects a child's right to protection in his or her best interests. The act of authorising new categories of weapons that may be used in a place where children are detained itself raises the question of the compatibility of the use of those particular weapons in that place with Charter rights.

197 Fifthly, Charter rights are also relevant in the decision to transfer particular children to and from Grevillea. The decision to remove a particular child to Grevillea may interfere with that particular child's rights, including the right to be protected in that child's best interests.

198 I consider the concession, made by the defendants in developing this contention, that the Charter applies to the Secretary and her delegates when making a decision to place a child at Grevillea, and to the General Manager of Grevillea and to Youth Justice and Corrections Victoria staff in their day to day dealings with children at Grevillea, to be properly made. I note also that the relief sought by the plaintiffs has been limited. For the foregoing reasons, I do not accept the defendants' submission that the establishment of Grevillea as a youth justice centre and youth remand centre, nor the making of the weapons exemption, was not, of itself, capable of engaging human rights for the purposes of the substantive limb of s 38(1) of the Charter.

199 The court is required, when assessing whether there has been incompatible action under s 38(1), to apply the requirement in s 7(2) that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom and taking into account all relevant factors.

200 The justifying party must also show that any limit on the human right is imposed under law.[110] As Bell J observed in Kracke,[111] the reasonable limits test imposes a 'stringent standard' of justification:

[I]n certain cases, human rights might need to be limited. That is why, under the Charter, human rights are not seen to be absolute. But they can only be limited according to a stringent standard of justification. Limitations can only be imposed under law, must be reasonable and demonstrably justified, and go only so far as is necessary in the interest of a free and democratic society that respects the dignity of the individuals who make it up.

201 In Kracke,[112] Bell J found the requirement that a limit on rights be 'under law' imposed both procedural and substantive requirements in terms of the legality of the limiting act. His Honour construed s 7(2) as requiring that any limitation of a Charter right be in accordance with a procedure prescribed by law (the procedural requirement), and compatible with the rule of law, that is, sufficiently certain, accessible, and non-arbitrary (the substantive requirement).

202 The plaintiffs submitted, and I agree, that the substantive requirement of 'under law' dictates that any limiting act must conform with the legislation that authorised the decision maker's action, and any limit on human rights that is not compatible with the law relied upon to authorise the limit on the right cannot be said to be 'under law' for the purposes of s 7(2) of the Charter. In particular, what is invoked into consideration are the relevant provisions of the CYF Act.

203 In this proceeding, I am concerned with decision making processes affecting the human rights of persons who are highly vulnerable by reason of their age and the fact of their incarceration. As I have noted, the defendants bear the onus, once prima facie incompatibility is established, to justify the limitations created by their actions or decisions. The standard of proof is high,[113] requiring 'a degree of probability which is commensurate with the occasion',[114] and must, by reason of that vulnerability, be strictly imposed.

204 Demonstrable justification requires an assessment made by reference to the matters listed in s 7(2), that include (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.[115]

205 The factors in s 7(2)(a) - (e) 'broadly correspond to the proportionality test identified in R v Oakes[116] by the Supreme Court of Canada'.[117] In that case, the Court said:[118]

There are three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question ... Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

206 Objective assessment of the nature and extent of the restraint effected on the engaged rights by the limitations and the relationship between the limitation and its purpose are critical. In Re Application under the Major Crimes (Investigative Powers) Act 2004,[119] the Chief Justice stated:

The court is directed by s 7(2) to consider the importance of the purpose of the limitation and the measures adopted to achieve the objective in question. It seems a matter of logic that the measures adopted in limitation of the right must be of sufficient importance to the uphold a free and democratic society to justify limiting a human right guaranteed by the Charter. It is clear the 'more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society'.

207 There was a further issue between the parties in respect of the statutory proportionality test. The defendants contended that I should give the decision maker a degree of latitude in respect of the decision to establish Grevillea, and should afford weight to the conclusions reached by the Secretary and DHHS, which VEOHRC submitted amounted to effectively importing a principle of 'margin of appreciation',[120] such as is found in European human rights jurisprudence. The text of the subsection does not reveal a 'margin of appreciation' or a 'weight and latitude' consideration in the justification process.

208 These labels open up complexities that require careful evaluation and I am not persuaded that I need delve into comparative human rights law on this issue. Neither, however, am I persuaded that the label correctly characterised the degree of deference for the public authority that the defendants submit is appropriate.

209 The crux of VEOHRC's contention was that any respect for the primary decision maker must be limited to what is applied to the assessment of evidence in the course of any other form of judicial fact-finding or adjudicative task and no greater degree of weight or latitude ought to be afforded to the public authority simply as a matter of course. Context is critical. VEOHRC submitted that the context and circumstances in which the acts and decisions that engaged important Charter rights have occurred in this case militate against the court in any way deferring in its review to the balance struck by the public authority.

210 The defendants contended that judicial review for substantive compatibility with human rights does not involve merits review, but rather, as with all grounds of judicial review, it involves assessing the legality of an executive decision. That required that some weight and latitude be accorded to the decision maker.

211 These propositions require some analysis. In PJB v Melbourne Health (Patrick's case),[121] Bell J reaffirmed the supervisory nature of the Court's jurisdiction.

... when judicially reviewing for unlawfulness under ss 38(1) and 7(2), the court does not reconsider a primary act or decision on the merits. The jurisdiction of the court is supervisory, not substitutionary. It is to determine whether the act or decision is unlawful by reference to the human rights standards in the Charter, not to make a determination on the merits of the matter which is in substantive issue. Relief cannot be granted simply because it takes a different view of the act or decision on the merits.

...

It can be seen that, by its very nature as a standard of review, proportionality draws the court more deeply into the facts, the balance which has been struck and the resolution of the competing interests than traditional judicial review. This gives rise to the issue of how the court is to provide effective judicial protection for human rights while at the same time respecting the administrative function of the public authority under its legislation and not drifting into merits review. One important way of addressing that issue is by affording weight and latitude to the acts and decisions of primary decision-makers.

212 The issue in Patrick's Case concerned the appointment of an administrator over the assets of an involuntarily detained mentally ill person. Patrick's Case does not stand against the existence of a distinction between the traditional administrative law rejection of merits review and a role for the court in human rights review that properly discharges its review jurisdiction. The statutory task of judicial determination of Charter unlawfulness must necessarily require an assessment that is closer to merits review than is usual in judicial review. The assessment of proportionality has been described as a task requiring a greater intensity of review, an approach endorsed by Bell J.[122]

213 The operation of the proportionality test in the context of the substantive obligation in s 38(1) of the Charter has received limited consideration in Victoria. Properly read, Bell J, in Director of Housing v Sudi,[123] and Patrick's Case,[124] adopted an approach to the s 7(2) assessment developed in respect of proportionality in the United Kingdom cases. That approach was explained by Lord Steyn in Regina (Daly) v Secretary of State for the Home Department :[125]

Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach ... The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality ... But the intensity of review is somewhat greater under the proportionality approach ... I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] is not necessarily appropriate to the protection of human rights ... [T]he intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.

The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review ... And Laws LJ rightly emphasised in Mahmood, 'that the intensity of review in a public law case will depend on the subject matter in hand'. That is so even in cases involving Convention rights. In law context is everything.

214 The settled approach taken by courts in the United Kingdom to judicial review of decisions against the standard set by s 6 of the Human Rights Act 1998 (UK) recognises the fundamentally distinct roles of judges and administrators in a democratic society, and the limitations on the role of judges undertaking judicial review.[126]

215 The defendants contended that, in particular, where a public authority has carefully weighed competing considerations and has concluded that some interference with rights is justified, a court should give due weight to that conclusion.[127] That is an example of a court approaching its assessment of proportionality by reference to all of the relevant circumstances. What constitutes appropriate weight to be accorded to the public authority's conclusion remains a matter for the court. As Lord Bingham said in R(SB) v Denbigh High School:[128]

If, in such a case, it appears that such a body has conscientiously paid attention to all human rights considerations, no doubt a challenger's task will be the harder. But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.

216 There is merit in VEOHRC's submission that the objective assessment by the court requires, in both fact-finding and evaluation of competing circumstances and considerations, an intensity of review that cannot be watered down by classification as impermissible merits review, for that is not what it is. That said, there is also force in the defendants' contention that a court may not be possessed of the necessary breadth of information, experience, or background that informed the decision maker's conclusion and great care must be exercised by a court in its objective assessment of Charter unlawfulness. Care in this respect may be exercised by affording some weight to or latitude in the deliberations of the decision maker.

217 Precisely what 'intensity' is required and what that actually means is likely to depend on the particular circumstances before the court that will vary from case to case. Context and circumstances may include the experience and expertise of the primary decision-maker, the information that a decision-maker acts on and the extent to which a decision is supported and objectively justified by a transparent process of reasoning. A detailed brief that informed the decision or detailed reasons from the decision maker may be persuasive.

218 I am satisfied that at least on its substantive limb, s 38(1) requires the court to approach s 7(2) with a limited degree of deference to the decision maker, either in terms of fact finding, discretionary considerations or the exercise of the balancing judgments. To do otherwise would constrain the court's analysis of the lawfulness of the act or decision and constitute a failure to properly exercise the review jurisdiction. Proportionality, however, must be judged objectively, by the court. No greater degree of 'weight and latitude' can be given to a public authority's acts and decisions for to do so would be for the court to defer in its review to the balance struck by the public authority.

219 Giving some weight to the decision-maker's conclusion as described above should not be regarded as embracing the doctrine of deference.[129] Rather, it is simply to accord respect to 'the different institutional functions of the judiciary, the parliament and the executive in the constitutional framework',[130] and is consistent with the manner in which similar considerations are given weight in traditional judicial review in Australia.[131]

220 Turning to the procedural limb, the Charter requires that 'proper consideration' be given to a human right that is relevant to a decision-maker because the right has been engaged regardless of whether the human right is in fact affected by the decision being made. In De Bruyn v Victorian Institute of Forensic Mental Health, Riordan J observed:[132]

For the defendant to be required to give proper consideration to human rights under s 38(1), such rights must be 'relevant'. Human rights will be relevant if the proposed decision will apparently limit such rights. A decision, which will apparently limit a right (without consideration of s 7(2) factors), is said to have 'engaged' the right. Engagement, in this sense, is to be contrasted with 'incompatibility', which applies when the limitation of the right cannot be demonstrably justified according to s 7(2).

221 The obligation to accord proper consideration requires a public authority decision-maker to understand in general terms which rights may be relevant and whether and how those rights will be interfered with by the decision that is being made.[133] In determining which rights are relevant for the purposes of the proper consideration requirement, the court should construe the rights in the Charter in the broadest possible way.[134] Proper consideration also requires a decision maker to have seriously turned his or her mind to the possible impact of the decision on an affected person's human rights and the implications for that person; and to identify the countervailing interest or obligations.[135]

222 In Castles v Secretary to the Department of Justice, Emerton J stated:[136]

...proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the 'correct' rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.

While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.

223 In Bare v IBAC,[137] Tate JA explained that the obligation is stringent because the Charter was intended to have a normative effect on the conduct of public authorities. Her Honour agreed with Emerton J's four step approach to assessing proper consideration under the procedural obligation in s 38(1).[138] Tate JA described the obligation in s 38(1) as imposing a higher standard than the obligation on a decision maker to take into account a consideration at common law or under statute.[139] This follows from the obligation to give 'proper' consideration to human rights.

224 In De Bruyn v Victorian Institute of Forensic Mental Health,[140] Riordan J reviewed the authorities in relation to 'proper consideration' under s 38(1) of the Charter. His Honour concluded:[141]

(a) The decision-maker must seriously turn his or her mind to the possible impact of the decision on the person's human rights and the implications thereof for the affected person; and identify the countervailing interest or obligations.

(b) The proper consideration requirement would not be satisfied by merely invoking the Charter 'like a mantra'. By this statement, Emerton J in my opinion was saying that it will not be sufficient for an authority to identify the Charter, or even the particular sections, and provide a pro forma explanation.

(c) On the other hand, it is not necessary that the decision-maker identify the 'correct' right which it may interfere with (ie the correct section under which the right is protected) or explain any content of any right by reference to legal principles or jurisprudence. It is necessary to identify in general terms the nature and extent of effect of the decision on the person's rights.

(d) After identifying the actual rights affected, the decision-maker will be required to balance the competing private and public interests.

(e) There can be no formula for the exercise and it should not be scrutinised over-zealously by the courts.

225 What remains is to say a little about the relationship between the two limbs in s 38(1) of the Charter. Even if a limitation on a human right is ultimately found to be proportionate, if the public authority has made a decision, it is still required to give proper consideration to relevant human rights. The obligation to give proper consideration to relevant human rights does not depend on any determination of compatibility. 'Proper' does not mean 'compatible' in this sense. I agree with VEOHRC's submission that there is no textual warrant for conflating the two forms of obligation imposed by s 38(1).

226 It is possible for a public authority to make a decision that will interfere with rights in a way that would be demonstrably justifiable, even though the decision-maker did not give any, or any adequate, consideration to the human rights issues that were involved. In that situation, the public authority will nevertheless have acted unlawfully, because rights will not have been properly considered as part of the decision-making process. This is a matter of real practical significance even if the decision that was made involved a justifiable interference with rights, because if rights had been properly considered a different decision might have been made. If this were not so, the obligation to give proper consideration would be negated such that its utility would be diminished or void. The requirement for a public authority to give proper consideration to human rights must be given work to do.[142]

227 The plaintiffs submitted that the Grevillea gazettal orders engaged the following human rights described in the Charter:

(a) in s 10(b), the right not to be treated or punished in a cruel, inhuman or degrading way;

(b) in s 17(2), the right of children to such protection as is in their best interests;

(c) in s 22(1), the right to humane treatment when deprived of liberty;

(d) in s 22(3), the right of an accused person to be treated in a way that is appropriate for a person who has not been convicted;

(e) in s 23(3), the right of a child who has been convicted of an offence to be treated in a way that is appropriate for their age; and

(f) in s 25(3), the right of a child charged with a criminal offence to a procedure that takes account of his or her age and the desirability of promoting the child's rehabilitation.

228 The defendants dispute, and I agree, that the last two rights in this list were engaged in the circumstances.

229 With regard to s 23(3), each of the plaintiffs is detained on remand and none is, or was, serving a sentence following a conviction. Plaintiffs who have been sentenced since the proceeding was commenced have been transferred to Malmsbury or Parkville to serve their sentence. The extent to which convicted plaintiffs are further detained at Grevillea is limited to the time required to put in place the necessary logistics for their removal from it. Section 23(3) is not engaged.

230 Section 25(3) applies throughout the entire criminal process,[143] and is modelled on article 14(4) of the International Covenant on Civil and Political Rights (ICCPR).[144] Comparative authority on equivalent protections suggests that s 25(3) provides for a child defendant to be treated in a manner consistent with the promotion of the child's dignity and worth, including through measures to ensure the child understands and is able to effectively participate in the criminal process.[145] Section 25(3) is primarily concerned with the processes and procedures that lead to the detention of a child charged with a criminal offence, or to other consequences under the criminal law, rather than the conditions under which the child may be detained. While it may be relevant on a bail application,[146] it has no relevance to the place or conditions in which a child may be held while on remand. Like the right in s 23(3), it is not engaged in the circumstances of this proceeding.

231 Section 22(3) of the Charter, modelled on article 10(2)(a) of the ICCPR,[147] provides that an accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted. It has a different and narrower scope than the general right in s 22(1) of all persons deprived of liberty to be treated with humanity and dignity (to be considered shortly).[148] It extends beyond segregation from convicted prisoners (which is provided by s 22(2) of the Charter) to 'appropriate' treatment; that is, differential, treatment that emphasises a person's status as an unconvicted person who enjoys the right to be presumed innocent,[149] which may include, for example, privileges such as being able to wear one's own clothes, make telephone calls, eat one's own food, and access to library and recreational activities.[150]

232 The plaintiffs did not identify how it was put that the right in s 22(3) is engaged or was limited.[151] This right was not in issue in Certain Children. I find that this right was not engaged in the circumstances of this proceeding.

233 For the reasons that follow, I find that of the remaining three rights asserted by the plaintiffs, a child's right to protection in best interests (s 17(2)) and a detainee's right to humane treatment with respect for dignity (s 22(1)) were engaged rights, but a person's right not to be subject to cruel, inhuman or degrading treatment was not an engaged right (s 10(b)). The defendants did not dispute that the first two mentioned rights were engaged in the circumstances, particularly by the finding of this court to that effect in Certain Children immediately prior to the conduct and decisions in question, but contended that a person's right not to be subject to cruel, inhuman or degrading treatment was not engaged.

234 Determining whether or not a decision or act limits rights requires consideration of the scope and content of the relevant rights and whether the making of the decision or the taking of action does not comply with what is required by relevant human rights. Where it is concluded that a decision or an act does limit human rights, it is then necessary to determine whether any such limitation is reasonable and justifiable so as not to be incompatible with human rights and consequently unlawful under s 38(1) of the Charter.

235 To resolve these issues, I need to say something about the scope and content of the each of the three rights in issue, commencing with the right that was in contest between the parties.

Cruel inhuman or degrading treatment, s 10(b)

236 The defendants contended that the right under s 10(b) of the Charter was not engaged. For the reasons that follow, I accept that submission. The relevant right that was engaged was the right under s 22(1), to which I will return.

237 I note the caveat that Emerton J expressed in Castles v Secretary to the Department of Justice[152] that the right under s 22(1) not be conflated with the right protected by s 10(b). Emerton J observed:

[Section] 22(1) of the Charter ought not to be conflated with s 10(b), which protects persons from treatment or punishment that is cruel, inhuman or degrading. Section 22 is a right enjoyed by persons deprived of their liberty; s 10(b) applies more generally to protect all persons against the worst forms of conduct. Section 10(b) prohibits 'bad conduct' towards any person; s 22(1) mandates 'good conduct' towards people who are detained.

238 The plaintiffs submitted that the scope and engagement of the right in s 10(b) was discussed, correctly, by Garde J in Certain Children without further elaboration and submitted that I ought to follow his Honour's findings. VEOHRC also invited me to follow his Honour's analysis. The defendants put the same submission as was put to Garde J.

239 In Certain Children, Garde J stated about the right under s 10(b):

(a) International authority suggests that the prohibition of torture, or other cruel, inhuman or degrading treatment or punishment protects against acts that cause both physical and mental suffering. The particular circumstances of the individual are relevant and should be taken into account, and children should be accorded treatment appropriate to their age.[153]

(b) The fact that the plaintiffs are children is significant when assessing whether the conduct is cruel, inhuman or degrading treatment or punishment.[154]

His Honour then set out the defendants' submissions in Certain Children (in substance the same submission was put to me):

(c) Ill-treatment must reach a minimum standard or threshold of severity or intensity before it can amount to cruel, inhuman or degrading treatment.[155] Treatment may be considered degrading if it humiliates or debases a person, causes fear, anguish or a sense of inferiority, or is capable of possibly breaking moral or physical resistance or driving a person to act against their will or conscience. Degrading treatment involves more than the usual element of humiliation which follows from the very fact of being convicted and punished by a court. Similarly, inhuman treatment must reach a minimum level of severity manifesting in bodily injury or intense physical or mental suffering. The assessment of the minimum threshold is relative and depends on all the circumstances of the case, including the duration of the treatment, its physical or mental effects, and the sex, age and state of health of the alleged victim.

(d) Comparative international case law indicates that the prohibition on cruel, degrading and inhuman treatment is concerned with the deliberate imposition of severe suffering. Though the absence of a purpose to harm, humiliate or debase a victim does not conclusively rule out a violation of the cruel treatment right, the purpose of the treatment is, at the very least, a factor to be taken into account.[156]

(e) In considering s 10(b) of the Charter, Victorian courts have considered physically assaulting and using capsicum spray on a handcuffed person,[157] and dragging a person with a disability across a hallway while naked, causing bruising and grazing,[158] to constitute cruel, degrading or inhuman treatment.

(f) The use of force in law enforcement may constitute cruel or inhuman treatment if it is grossly disproportionate to the purpose to be achieved and results in pain or suffering meeting a certain threshold.[159] With respect to solitary confinement, the European Court has held:[160]

The segregation of a prisoner from the prison community does not in itself constitute a form of inhuman treatment. In many States Parties to the Convention, more stringent security arrangements exist for dangerous prisoners. These arrangements (strict isolation, removal of association, dispersal in special, very small units etc.), which are intended to prevent the risk of escape, attack or disturbance of the prison community, or even to protect a prisoner from his fellow-prisoners, are based on separation from the prison community with tighter controls.

...

[The European Commission on Human Rights] has stated that prolonged solitary confinement is undesirable, especially where a person is detained on remand. However, in assessing whether such a measure may fall within the ambit of Article 3 of the Convention in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned.

(g) Canadian and European courts[161] have held that the following do not rise to the level of suffering inherent in the notions of cruel, degrading or inhuman treatment:

(i) treatment of remand prisoners, including limitation of visits, intimate body searches, delousing with pesticides, and the use of handcuffs and shackles on remand prisoners in a manner that did not exceed what was reasonably necessary in the circumstances.

(ii) 'double-bunking' inmates in a prison cell meant for one person, drug testing of prisoners, and the detention of a violent offender in a 'strip cell' with limited access to proper hygiene.

240 The Solicitor-General's criticism of Garde J's conclusion carried some force. Although, as above, Garde J set out at some length the defendants' submissions as to the content of the s 10(b) right, he gave no analysis of those submissions. While his Honour was not critical of the submissions, neither did he suggest that the principles identified represent the jurisprudence in respect of the scope of the right in s 10(b). Immediately following his recitation of the defendants submissions, Garde J expressed his finding in respect of s 10(b):[162]

I find that the right in s 10(b) of the Charter is engaged. There is evidence that one or more young persons have, or may have, been subject to a breach of s 10(b) by reason of the harsh conditions at the Grevillea unit of the Barwon Prison at least in the first two weeks of its occupancy as a remand centre including:

(a) very long periods of solitary and prolonged confinement of young people in cells formerly used for high security adult prisoners;

(b) uncertainty as to the length and occurrence of lockdowns;

(c) fear and threats by staff against young persons;

(d) the use of SESG inside the Grevillea unit, including German Shepherd dogs;

(e) the use of handcuffs on young people when moving to outdoor areas;

(f) the noise of loud banging on the doors or screaming;

(g) the failure to advise young people of their rights or the rules of the centre;

(h) the general lack of space and amenities for young persons and the limited opportunity to use the space and amenities available;

(i) the absence or very limited opportunity for education or other pursuits; and

(j) the absence of family visits or access to religious services or advisers.

The evidence of Ms Fitzgerald, Ms Leikin, and Mr Murray supports these findings.

241 I will come to the evidence later. The conditions at Grevillea had changed to come extent by 29 December 2016. I accept the defendants' contention that his Honour's finding, as I have just set it out, does not obviously follow a path of reasoning from the discussion of the scope of the right in s 10(b) to the findings made. For example, very long periods of solitary and prolonged confinement of young people in cells formerly used for high security adult prisoners might engage the right on the basis that it is concerned with deliberate infliction of acute or severe suffering, but why the general lack of space and amenities for young persons and the limited opportunity to use the space and amenities available would do so to my mind requires more specific reasoning. VEOHRC adopted 'the scope' of the right identified by Garde J, 'including by reference to the Defendants' submissions'. The precise scope of this submission was uncertain.

Right of detainee to humanity, respect and dignity, s 22(1)

242 It is convenient to contrast Garde J's analysis in Certain Children of s 10(b) with his analysis of s 22(1). In respect of the scope of the s 22(1) right, each of the plaintiffs and VEOHRC invited me to follow or adopt Garde J's analysis.

243 In summary, Garde J concluded that:[163]

(a) the right to dignity in s 22(1) recognises the vulnerability of all persons deprived of their liberty.[164]

(b) The content of s 22(1) of the Charter is informed by Article 10 of the ICCPR, which references conditions of detention, including relevantly that each prisoner shall occupy by night a cell or room by himself or herself, be provided with a separate bed and with separate sufficient and clean bedding, and shall have at least one hour of suitable exercise in the open air daily including physical and recreational training. Discipline and order shall be maintained with no more restriction than is necessary to ensure safe custody, the secure operation of the prison and a well-ordered community life. In no circumstances may restrictions or disciplinary sanctions amount to torture or other cruel, inhuman or degrading treatment or punishment, and prohibited practices include prolonged solitary confinement.

(c) As Emerton J stated in Castles,[165] the starting point should be that prisoners not be subjected to hardship or constraint other than the hardship or constraint that results from the deprivation of liberty, accepting that a necessary consequence of the deprivation of liberty is that rights and freedoms which are enjoyed by other citizens will necessarily be curtailed, attenuated and qualified.

(d) In Dale v Director of Public Prosecutions,[166] the Court of Appeal noted that, but did not express a view no whether, the conditions of detention of a dangerous prisoner, which included solitary confinement, strip searches and shackling with leg irons when out of the unit, might raise questions under s 22(1).[167]

(e) In Taunoa v Attorney-General,[168] a decision of the High Court of New Zealand, Ronald Young J considered in detail the right to humane treatment when deprived of liberty and held that the combination of the conditions of detention, which included lengthy unlawful segregation from other inmates, loss of ordinary inmate entitlements, inadequate exercise considerations, and cell hygiene, bedding and clothing that fell below the standards established by prison regulations, amounted to a breach of the right to humane treatment when deprived of liberty.

244 On appeal, in Taunoa v Attorney-General,[169] the New Zealand Supreme Court considered the interaction between the equivalent rights to freedom from cruel treatment under s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA), and to humane treatment when deprived of liberty under s 23(5) of the NZBORA. After noting that the former was concerned with the prevention of treatment properly characterised as 'inhuman', while the latter was concerned to ensure prisoners were treated 'humanely', Elias CJ stated:[170]

The concepts are not the same, although they overlap because inhuman treatment will always be inhumane. Inhuman treatment is however different in quality. It amounts to a denial of humanity. That is I think consistent with modern usage which contrasts 'inhuman' with 'inhumane' ... In application to those deprived of liberty, such provisions are based on the fundamental premise that prisoners are not to be treated as if they are less than human. Denial of humanity may occur through deprivation of basic human needs, including personal dignity and physical and mental integrity. Inhuman treatment is treatment that is not fitting for human beings, 'even those behaving badly in prison'.

245 Blanchard J similarly concluded that the right against inhuman treatment in s 9 of the NZBORA was 'intended to capture treatment or punishment which is so grossly disproportionate in the circumstances'.[171] His Honour continued:[172]

That leaves to s 23(5) the task, couched as a positive instruction to the New Zealand government, of protecting a person deprived of liberty and therefore particularly vulnerable (including a sentenced prisoner) from conduct which lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so.

246 Garde J concluded that the establishment of a remand centre and youth justice centre within the confines of Barwon Prison engaged a child's right to be treated with humanity while in detention at Grevillea. His Honour found the conditions at Grevillea at least in the first two weeks of its occupation as a remand centre included:[173]

(a) very long periods of solitary and prolonged confinement of young people in cells formerly used for high security adult prisoners;

(b) uncertainty as to the length and occurrence of lockdowns;

(c) fear and threats by staff against young persons;

(d) the use of SESG inside the Grevillea unit, including German Shepherd dogs;

(e) the use of handcuffs on young people when moving to outdoor areas;

(f) the noise of loud banging on the doors or screaming;

(g) the failure to advise young people of their rights or the rules of the centre;

(h) the general lack of space and amenities for young persons and the limited opportunity to use the space and amenities available;

(i) the absence or very limited opportunity for education or other pursuits; and

(j) the absence of family visits or access to religious services or advisers.

247 It is evident that the same findings, in substance, support the conclusion that each right was engaged and limited. I accept that in making these findings in respect of the s 22(1) right, Garde J was reasoning that such treatment amounted to a breach of the right to humane treatment when deprived of liberty and that the defendants were imposing hardship or constraint that was beyond the necessary consequence of the deprivation of liberty. To that extent I agree that where the decision or action of a public authority imposes a hardship or constraint on a child that extends beyond the necessary consequence of the deprivation of liberty, the right under s 22(1) may become relevant or be engaged.

248 The major qualification on such right, which cannot be absolute, will be the necessity to ensure safe custody, the secure operation of the facility and a well-ordered community life within that facility, but these are matters for consideration at the stage of assessment of the proportionality or justification of limitations on that right.

Conclusion on engagement of s 10(b) and s 22(1)

249 While there can doubtless be overlap in the scope of different rights under the Charter, the proper scope of the s 10(b) right is informed by the principles identified in the judgments of foreign and international courts and tribunals that were set out by Garde J as the submissions made to him by the defendants. The same material, in substance, was put before me. Section 32(2) of the Charter permits a court to consider such materials in interpreting the scope of a human right defined by the Charter.

250 The scope of the s 10(b) right is conditioned by a minimum standard or threshold of severity or intensity that can manifest in bodily injury or physical or mental suffering. It is the combination of the adjectives in s 10(b) that defines the prohibited treatment or punishment, and the discussion in Taunoa is most helpful in appreciating the distinction. The assessment of the minimum threshold is relative and depends on all the circumstances of the case, including the duration of the treatment, its physical or mental effects, and the sex, age and state of health of the alleged victim. Children should be accorded treatment appropriate to their age. The use of force in law enforcement or corrections that is grossly disproportionate to the purpose to be achieved and results in pain or suffering meeting that threshold may constitute a breach of the right. Most cases of breach will involve on the part of the offender deliberate imposition of severe suffering or intentional conduct to harm, humiliate or debase a victim. The purpose of the offender's conduct will, at the very least, be a factor to be taken into account, though the absence of such a purpose does not conclusively rule out a violation of the right.

251 I propose to assess the issues of the s 10(b) right and the 22(1) right in this proceeding on the basis of the foregoing observations. It is not in issue that the s 22(1) right was engaged and was considered by the decision makers.

252 I am not satisfied that the s 10(b) right not to be subject to cruel, inhuman or degrading treatment was engaged in a decision to use for children a unit within a maximum security adult correctional facility, which was to be excised from it in a legal but not a practical sense. It was common ground that Grevillea was not designed with the rehabilitative purpose and attendant need for particular facilities required for either a youth remand centre or a YJC. The decision maker knew that the facility was not immediately suitable for the intended use and needed to be developed into an appropriately operating youth justice facility. This would involve both renovations to the built structure (within the limits it imposed) and the provision of appropriate services within it.

253 The use of Grevillea immediately on its gazettal, and following on the circumstances in which facilities had been lost at Parkville, was prior to completion of renovations, and the development of staffing plans, programs, and processes for separated accommodation sectors, and prior to full arrangements being made for appropriate security, exercise and outdoor activity, education, health services, family and professional visits. This confluence of circumstances necessarily raised the prospect that considerations of security and safety within the facility could result in operational decisions arising directly from the physical features of the building and surrounds, as located within the adult prison site, that might result in treatment of child detainees that lacked humanity and respect for the inherent dignity of a child but did not raise the prospect of treatment or punishment that was cruel, inhuman or degrading.

254 I take into account in this respect the plaintiffs' submission that under international law,[174] the right in s 10(b) is part of an absolute right (which also includes s 10(a) and parts of s 10(c)) that cannot be derogated from (even in time of war or other public emergency):[175]

The text of article 7 allows of no limitation... even in situations of public emergency...no justification or extenuating circumstances may be invoked to excuse a violation...

255 That is, the resourcing and placement choices that the defendants faced could not be used to 'demonstrably justify' the limitation on the rights of children in detention to be free from cruel, inhuman or degrading treatment. Primarily, this is an issue for justification of a limit rather than engagement of a right, and lacks resonance in the context of whether the right is engaged.

256 I am not persuaded that the decision to use Grevillea, given its built environment, can be construed as a decision that deliberately imposed severe suffering or amounted to intentional conduct to harm, humiliate or debase a detainee. The plaintiffs did not establish any inappropriate purpose on the part of the decision maker that might engage the s 10(b) right. The decision maker's purpose was to deal with an accommodation crisis within the youth justice system. The decisions did not amount to a denial of humanity and that was not the purpose of them, or any of them.

257 Inhuman treatment was not a necessary consequence of the decision to establish a youth justice centre at Grevillea or of a decision to transfer a detainee there. Conduct that would constitute breach of the s 10(b) right would necessarily, in the circumstances, require intervening conduct by others that would not be reasonably anticipated by the decision maker.

258 I find that it was not relevant for decision makers to consider the s 10(b) right, while the right under s 22(1) was engaged in the circumstances.

259 The best interests of the child principle, as particularly expressed in the CYF Act is not applicable to the Governor in Council as a decision maker under Chapter 5 of the Act, but the Secretary is under a duty to observe the best interests of the child principle by reason of s 482(1)(a) of the Act. That said, by reason of ss 17(2) and 38 of the Charter, the best interests principle is nonetheless imported to the acts and decisions of a public authority that engage Charter rights.

260 Section 17(2) of the Charter provides in general terms for the right of every child, 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. Section 17(2) of the Charter is modelled on, but not identical to, article 24(1) of the ICCPR, as well as article 3(1) and (2) of the Convention on the Rights of the Child (CROC).

261 In Certain Children, Garde J held that the central element of the right protected by s 17(2) is the best interests of the child. His Honour accepted that guidance from the CROC and materials from the United Nations inform the scope of the right protected in s 17(2).[176] In particular, the United Nations Standard Minimum Rules for the Administration of Justice (Beijing Rules) provide an established international framework by which substance and standards can be given to s 17(2).[177]

262 Interpreting the right protected in s 17(2), informed by the CROC and the Beijing Rules, it is apparent that:

(a) it is not possible to assess what is in a child's best interests without hearing from the child and giving due weight to his or her views. Article 12 of the CROC requires 'in all matters affecting the child, the views of the child be given due weight in accordance with the age and maturity of the child.' This Court has accepted this principle.[178] Interpreting the s 17(2) right broadly, the 'matters' on which a child's views should be heard and given weight, should, where a child is placed in detention, whether on remand or under sentence, also require a broad approach. To do so is consistent with the protection of rights for children in detention in CROC, and the approach taken by the United Nations Human Rights Committee.[179] This aspect of the scope of the right would be engaged in the transfer decisions, each of which will be unique to the particular child, but is not a necessary aspect of making Orders in Council.

(b) in all decisions taken within the context of the administration of juvenile justice, the best interests of the child should be a primary consideration.[180] This is because 'children differ from adults in their physical and psychological development, and their emotional and educational needs'.[181]

(c) the State is required to ensure to the maximum extent possible the survival and development of a child.[182] As the UN Committee on the Rights of the Child has observed, 'the use of deprivation of liberty has very negative consequences for the child's harmonious development and seriously hampers his/her reintegration into society.'[183]

(d) in the criminal process, children should be 'treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedom of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society'.[184] Respect for the dignity of the child requires that all forms of violence in the treatment of children in conflict with the law must be prohibited and prevented.

263 In Certain Children, Garde J accepted that to protect a child's best interests, State parties to the CROC are expected to 'establish separate facilities for children deprived of their liberty, which include distinct, child-centered staff, personnel, policies and practices.'[185] As Garde J observed,[186] CROC provides that:

(a) every child deprived of liberty has the right to maintain contact with his or her family, including by placing the child in a facility as close as possible to the place of the family's residence in order to facilitate visits;

(b) children should be provided with a physical environment and accommodation in keeping with the rehabilitative aims of residential placement, with due regard given to a child's needs for privacy, sensory stimuli, opportunities to associate with peers, and to participate in sports, physical exercise, arts and leisure time activities;

(c) every child of compulsory school age should be provided with education suited to his or her needs and abilities and that is designed to prepare him or her to return to society, and every child should receive, where appropriate, vocational training in occupations likely to prepare him or her for future employment;

(d) every child should receive adequate medical care throughout his or her stay in the facility, provided, where possible, by health facilities and services of the community;

(e) staff of the facility should promote and facilitate frequent contacts of the child with the wider community, including communications with family, friends and other persons or representatives of reputable outside organisations, and the opportunity to visit his or her home and family; and

(f) any disciplinary measure should be consistent with upholding the inherent dignity of the young person and the fundamental objectives of institutional care, with corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child, strictly forbidden.

264 Garde J held that s 17(2) of the Charter is given context and is informed by the Beijing Rules.[187] These rules highlight the importance of emphasis on the well-being of children and a proportionate response to youth offenders having regard to the circumstances of both the offenders and the offence.[188] The Beijing Rules provide that 'while in custody, juveniles shall receive care, protection and all necessary individual assistance - social, educational, vocational, psychological, medical and physical - that they may require in view of their age, sex and personality.'[189] Recognising the difficulty in formulating guiding principles for sentencing dispositions, the Beijing Rules provide that the objective of treatment of children placed in institutions including prisons, is to 'provide care, protection, education and vocational skills, with a view to assisting them to assume socially constructive and productive roles in society.'[190] The Rules recognise that it is in the interest and well-being of the child for the child's parents or guardians to have a right of access.[191]

265 These highlighted features from the CROC and the Beijing Rules make clear that children in the criminal process are not in the same position as adults. Rather, children require different treatment by reason of their age. There is an appropriately sharp focus in these instruments on a child's continuing development.

266 Section 17(2) of the Charter was plainly engaged at the time that Grevillea was re-established, as well as when making the relevant transfer decisions. As Garde J held in Certain Children (a finding that was not disturbed on appeal):[192]

The establishment of a new remand centre and youth justice centre within the walls of Barwon Prison has widespread ramifications for the young persons who may be transferred to these facilities. They include the sense of security or insecurity felt by the young persons, and the level of physical security. They include physical, social, emotional, intellectual, cultural and spiritual impacts. They include the capacity of the new centre to receive visits from parents, relatives, friends and legal advisors, and affect the ability to meet medical, religious and cultural needs. They include the capacity of the young person to receive information and make complaints about the standard of care, accommodation and treatment afforded to the young person.

267 It is generally not considered to be in the best interests of a child deprived of liberty to be placed in an adult prison or other facility for adults.[193] To protect the child's best interests, State parties to the CROC are expected to establish separate facilities for children deprived of their liberty with each of the attributes stipulated in CROC, as considered by Garde J and set out at [263] above.

268 Section 482(1)(a) of the CYF Act gives effect to the 'best interests principle'. The Secretary is obliged to determine the form of care, custody or treatment which she considers to be in the best interests of each person detained in a youth justice facility. The entitlements in s 482(2), and the Secretary's responsibility in s 482(3), give further effect to that principle in the context of youth detention. Thus, the CYF Act directs attention to protecting the best interests of children in detention, both generally and as to matters of detail.

269 Garde J determined that the decisions embodied in the November Orders in Council engaged s 17(2) of the Charter, directly affecting children who may be transferred to the new remand centre and youth justice centre established within the walls of Barwon Prison. The evidence before the court made plain that the ramifications were widespread and included physical, social, emotional, intellectual, cultural and spiritual impacts. They included the capacity of the new centre to receive visits from parents, relatives, friends and legal advisors, and affected the ability to meet medical, religious and cultural needs. They included the capacity of the young person to receive information and make complaints about the standard of care, accommodation and treatment afforded to them.

270 Having regard to the scope of this right, it was relevant to the deliberations of the decision makers because the enjoyment of the right was capable of being limited in various ways by the decisions being considered. The defendants correctly recognised that this right was engaged.

271 The plaintiffs submitted that the ss 10(b), 17(2), 22(1) and 22(3) rights were relevant to, and engaged by, the transfer decisions. The plaintiffs submit that the engagement of those rights with regard to the transfer decisions is implicitly confirmed by their inclusion in the check-list used by the decision maker when considering transfer to Grevillea. A separate checklist is completed for each child when operational staff are considering transferring that child to Grevillea and I accept that the decision maker considered that the rights in ss 10(b), 17(2), and s 22(1) were relevantly engaged in the circumstances.

272 For the reasons that I have already given in relation to the Grevillea Orders, I do not consider that the rights in ss 10(b) and 22(3) were engaged in the present circumstances. The plaintiffs did not submit any particular basis upon which the narrower scope of the right in s 22(3) was engaged in these circumstances, other than that which is covered in the general right in s 22(1).

273 The plaintiffs submit that the Weapons Exemption limited the human rights in sections 10(b), 17(2) and 22(1) of the Charter because it had the inevitable result that OC spray was able to be used towards children in Grevillea. For the reasons that are outlined at [190] and following, I do not accept the defendants submissions that the Weapons Exemption could not, of itself, affect or limit the human rights of any of the plaintiffs; or alternatively, that the Weapons Exemption could only limit the plaintiffs' human rights in the abstract.

274 Regardless of whether the powers are used, the authorisation of new categories of weapons that may be used in a place where children are detained was capable of interfering with rights protected by the Charter, being the right to humane treatment when deprived of liberty under s 22(1) and a child's right to protection in his or her best interests under s 17(2).

275 I consider that in the case of the Weapons Exemption the right in s 10(b) is also engaged. There is evidence, from the brief provided to the Minister, that the potential for limitations of this right were considered by the decision maker. The use of force in law enforcement may constitute cruel or inhuman treatment if it is grossly disproportionate to the purpose to be achieved and results in pain or suffering meeting a certain threshold.[194] The use of particular weapons was not in issue before Garde J. I am satisfied that the ability for ERG officers to use OC spray in certain circumstances on children in the confines of the Grevillea Unit may, as opposed to the more general constraints of the built site itself, result in a level of physical suffering such as to engage the right. Whether or not the circumstances of its deployment rise to that level and the justification for any limitation of the non-derogable right in s 10(b) is a different question, considered elsewhere.

276 The plaintiffs submitted that making the December Orders in Council limited human rights because the Orders resulted in the detention of children in Grevillea.

277 Garde J held in Certain Children,[195] concerning the November Orders in Council, that:

I conclude that the Minister's recommendation and decision was substantively incompatible with human rights including those of the plaintiffs. Certainly, what was authorised by the Minister and done exceeded the reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom after taking into account the relevant factors set out in s 7(2) of the Charter itself.

278 These findings were not disturbed on appeal. The evidence in this proceeding demonstrated that the features of Grevillea that limit its capacity to fulfil the human rights of the children detained there are inherent in the nature and location of the facility and remain limited, consistent with the findings in Certain Children.

279 In the context of a bail application by a child held in Grevillea, Elliott J considered, without making findings,[196] that the rights in s 17(2), s 22(1) and s 22(3) were infringed by remand conditions at Grevillea that he described in the following terms:[197]

[T]he applicant, who is only 16 years old, has been placed in solitary confinement for 23 hours a day in a facility that was built to be an adult prison. At the very least, during the times that this has occurred the applicant had been denied educational programs, appropriate recreational programs or other facilities and amenities consistent with an environment appropriate for the rehabilitation of a child.

280 The plaintiffs asked for detailed findings of fact, considered below, that they submitted established that detaining children in Grevillea limited the human rights set out in ss 10(b), 17, 22 and 25(3) in a way that could not be demonstrably justified as reasonable. The plaintiffs submitted that the inherent features of Grevillea that impose limits on the identified rights were:

(a) it is an adult correctional unit within an adult prison that was not designed with the rehabilitative purposes of a youth justice facility and as a matter of fact does not meet the physical requirements of those purposes;

(b) the Unit is unsafe and has inadequate facilities for children;[198]

(c) it was not capable of hosting programs from which the children can obtain any material educational or developmental benefit;

(d) it could not separate remanded children from sentenced children, and those children are treated in the same manner;

(e) it is enclosed within a maximum security prison and entry is controlled by that prison, with the result that some family members are not allowed to visit;

(f) it is enclosed within a maximum security prison, which means that any security incidents that occur in the adult prison can prevent children from having visits with family;

(g) visits are regulated by Corrections Victoria which means that the extent of physical contact with family members is severely curtailed;

(h) it is a long distance from the city which limits the amount of public transport available to family members and makes it difficult for some family members to visit the children;

(i) it has no facilities for confidential visits with legal representatives;

(j) it has very limited outdoor space and limited equipment for physical development, and access to that space requires that some children be handcuffed in order to access it;

(k) the nature of the facilities require that children be isolated in their cells for many of their waking hours, with some children spending several days without any time outdoors;

(l) there is only one outdoor area so that specific children who are not able to mix with other children are necessarily prevented from visiting the outdoor area while those other children are in the communal area;

(m) there is only one central communal area so that specific children who are not able to mix with other children are necessarily confined to their cells while those other children are in the communal area;

(n) because it is enclosed within a maximum security prison, when there are incidents it is the prison special response group (SESG) that is called for assistance, rather than the police, which may involve the use of dogs, OC spray and batons;

(o) it is enclosed within a maximum security adult prison, which carries a significantly greater stigma than being held in a corrective service for children;[199]

(p) some children are required to be taken out of the Unit through the adult prison in order to have access to the outdoor area; and

(q) handcuffs are required to be used in conducting various routine activities with the children.

281 In short, the unit is a maximum security adult prison unit. The negative impact of this demoralising and dehumanising environment on young people, its capacity to cause suffering and harm, was explained by Dr Deacon. I will come to that evidence but presently note that the plaintiffs submitted from Dr Deacon's evidence I should conclude that for youth of the age and circumstances of the plaintiffs, the combined effects of the physical prison environment; its lack of natural light; the noise; the handcuffing; the requirement to take children through the adult prison to get outdoors; the use of prison officers; the lack of privacy, education, stimulation, and time out of doors; the confined outdoor space and extensive use of isolation; makes their detention in that place cruel or degrading.

282 The plaintiffs contended that the defendants cannot satisfy the court that any limits on these rights was 'under law'. The defendants' claim that limitations are under law because the Governor in Council acted under the powers given to it by s 478 of the CYF Act is no answer. Accepting that to be so is not an end to the enquiry in relation to the lawfulness of limitations on human rights. The limitations arising from the December Orders in Council (by way of the detention of children in Grevillea) put the Secretary in breach of her duty (s 482(1)(a)) to ensure a child's s 482(2) entitlements are met. The limitations are therefore unlawful and not a limit 'under law', regardless of the fact that the decisions are the exercise of power conferred by statute.

283 Because the limits on the human rights are not limits 'under law', the plaintiffs submitted that the court is not required to undertake the s 7(2) proportionality assessment. Irrespective of reasonableness, the limits on the human rights are not capable of demonstrable justification as reasonable under the section.

284 The plaintiffs submitted that in any event, given the extent of limitation of rights, and the central importance of each of the limited rights to that section's guiding theme of 'human dignity', limits were not demonstrably justified and are 'incompatible with a human right' under s 38(1) of the Charter. This is not least because the defendants' evidence shows that 'less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve' were not re-considered after the detention of children in Grevillea had been found to breach those Charter rights on 21 December 2016. The Secretary stated that the choice of Grevillea was based on advice provided to her in mid-November 2016 about the alternative accommodation options then available, effectively admitting that at the time of the December gazettal the defendants did not consider any other options.

285 Focussing on the rights in ss 10(b), 17(2) and 22(1) of the Charter, the defendants submitted that the establishment of Grevillea did not limit those human rights in the abstract. I have explained why I do not accept that submission.

286 In relation to the right to such protection as is in their best interests by virtue of being children, under s 17(2) of the Charter, the establishment of Grevillea was necessary as both Parkville and Malmsbury were, at the time the decision was made, and still are, operating at or above capacity. It is in the best interests of detained children to be accommodated in a facility with adequate beds and other resources and not to be subject to over-crowding, with all of its attendant risks.

287 While other facilities were considered for establishment as an additional remand centre and youth justice centre under the CYF Act, the Minister and those advising her concluded that Grevillea was the only available facility that: was secure and safe; was separate from adult prisoners; had sufficient beds available; and had a recreational space, program and education areas, and visitor facilities.

288 In the circumstances, where there were no other suitable alternatives available, it was consistent with the best interests of detained children such as the plaintiffs for Grevillea to be established as a remand centre and youth justice centre. Once the Grevillea Orders were made, ss 482, 487 and 488 of the CYF Act applied to the detention of children transferred there, together with the Charter, providing ongoing protection of their best interests as children in detention and of their right to be treated humanely while in detention.

289 On the evidence in this case, the right to be free from cruel, inhuman and degrading treatment in s 10(b) of the Charter was not even engaged, let alone limited, by the establishment of Grevillea. The decision was not made for the purpose of causing harm or humiliation. The fact that Grevillea is located within Barwon Prison, or the physical characteristics of Grevillea, does not even begin to approach the level of suffering inherent in the notions of cruel, degrading or inhuman treatment contemplated by s 10(b) of the Charter.

290 Further, the decision to establish Grevillea did not limit the right to humane treatment when deprived of liberty under s 22(1) of the Charter. The establishment of Grevillea was not inherently demeaning or degrading of any young person who might be transferred there, and did not of itself impose any hardship or constraint beyond that which results from detention on remand in accordance with the CYF Act.

291 The defendants' submission continued that although Garde J found[200] that ss 10(b) and 22(1) were engaged in relation to the November Orders in Council, there was no discernible path of reasoning to those findings, and it is difficult to reconcile them with the content of the rights set out at [243] above. Whether the rights were limited, in the abstract, by the making of the Grevillea Orders falls to be determined on the evidence in this case at the time the Orders were made.

292 I now turn to the evidence and my findings of fact before returning to the assessment of compliance with s 38(1) of the Charter.

293 It is convenient in explaining the narrative of events to commence with the defendants' evidence, but in so doing I bear in mind where the burden of proof lies at each stage of the assessment. Mostly, there was little conflict in the evidence and minimal cross-examination and I accept the evidence as tendered. Issues of conflict or that arose in cross-examination have been resolved in the narrative that follows.

294 The defendants relied on affidavits from eight deponents with Ms Peake, the Departmental Secretary and Ms Henderson, the delegate decision maker in respect of transfers, being cross-examined. The plaintiffs made some limited admissions in response to a Notice to Admit.

295 Kym Peake is the Secretary of the Department of Health and Human Services (DHHS). Children and young people who are remanded or who are sentenced to a period of detention under the Act were in her legal custody until 3 April 2017, when the responsibility for youth justice moved from the DHHS to the Department of Justice and Regulation (DoJR). Until mid-November 2016, there were two youth justice facilities in Victoria for young people in custody: Parkville and Malmsbury.

296 Following incidents in November 2016 at Parkville, 62 beds were no longer available to accommodate youth requiring a secure room. Immediately following the incidents the young people were transferred to other accommodation at Parkville and Malmsbury. That required some young persons to share rooms or be placed in isolation rooms, holding cells or police cells. Many of these cells lack basic facilities, such as a sink, toilet and shower. Since that time the youth justice custodial system in Victoria has had ongoing, serious capacity constraints, particularly with secure rooms. The pressure is highest in relation to the 15-18 year old male remand cohort.

297 Grevillea was gazetted as a YJC and remand centre, but by reason of the decision of the court in Certain Children and of the Court of Appeal, that gazettal was invalid.

298 As at 29 December 2016, Parkville was operating close to capacity and Malmsbury was operating beyond capacity. Overcrowding was causing operational issues. As at that date 12 young persons requiring secure rooms were accommodated at Grevillea. Ms Peake determined that Grevillea was the only available secure facility capable of operating separately from other Corrections Victoria facilities, based on advice provided to her in mid-November that none of the alternative accommodation options considered could safely and securely accommodate children who could not be accommodated at either Parkville or Malmsbury.[201] She said there were no other options for safe and secure accommodation available to DHHS. Cross-examined, Ms Peake agreed that she was aware of the Grevillea Unit's operational history and its design as a unit to house adult segregation and high security prisoners. The cross examiner did not put that any particular suitable alternative accommodation opportunities had been overlooked. She visited Grevillea for the first time in mid-January 2017.

299 Ms Peake produced a copy of the brief and the supporting documents that she provided as advice to the Minister to recommend to the Governor in Council, following the revocation of the invalid November Grevillea Orders, that Grevillea again be established as a remand centre and youth justice centre by Orders in Council under s 478 of the CYF Act.

300 In preparing this brief, and in light of her obligations and the entitlements of young people under s 482 of the CYF Act, Ms Peake directed DHHS staff to prepare an analysis of the services available to meet her statutory obligations based on the existing conditions at Grevillea. She requested of the Victorian Government Solicitors Office a human rights assessment, and the VGSO advised that the proposed gazettal was compatible with human rights. She considered the issues raised in Certain Children and took a number of steps to address them. She stated that:

Having considered the human rights assessment and analysis of statutory obligations I satisfied myself that the proposed gazettal was consistent with s 482 CFYA obligations and compatible with the Charter. Despite the limitations of the site at Grevillea and the challenges it posed it was my view that it was in the best interests of all of the young people in my custody that Grevillea be established to accommodate young people until the repairs at Parkville could be completed. Ultimately after careful consideration I formed the view that I would be able to discharge my duties and meet my responsibilities to young people detained at Grevillea. Based on that view I advised the Minister to recommend the establishment of Grevillea as a remand centre and youth justice centre.

301 Pausing for a moment, I will summarise the Charter Assessment that was included with the brief. It begins by identifying relevant rights and considering the possible impacts and limitation of the re-gazettal of Grevillea upon detainees' human rights. It then sets out 'countervailing interests and the Department's obligations' before reaching its conclusion that the potential limitations imposed on detainees' human rights are justified in the circumstances. My summary of its content with regard to the potential limitations on the rights contained in ss 17 and 22 (1) is set out below.[202]

(a) The right in s 17(2) for such protection as is in the best interests of the child:

Detainees under the CYF Act should be detained in separate facilities from adults.

• It will not be in the best interests of a child deprived of liberty to be placed in an adult prison.

• Grevillea will only accommodate young persons and is separate from Barwon Prison. At no time will detainees come into contact with, or be able to communicate with, adult prisoners.
• There is no visibility between the youth facility and adult accommodation, recreation and vocational areas of the prison.

A physical environment and accommodation in-keeping with the rehabilitative aims

of residential placement, with due regard given to the child's need for privacy,

sensory stimuli, opportunities to associate with peers, and to participate in sports, physical exercise, arts and leisure time activities.

• Grevillea is adjacent to the Prison, and the facilities were also previously used for the purposes of housing adult prisoners. This may affect the ability of the accommodation to achieve the rehabilitative aims of the facility.

• There is an outdoor yard which is approximately 60m x 40m comprising of a half-sized basketball court, small grassed area and two weights areas. The yard is available for daily use by up to six clients at a time until 6pm. The yard is fenced, including with a large wall on one side, and barbed wire.
• At the conclusion of daily classes, activity sessions including exercise classes and soccer games are delivered at Grevillea by outside organisations.
• There is a table tennis table in the multi-purpose area. Each bedroom has its own toilet, shower and (portable) television. A large flat screen television has been installed in the dedicated classroom, for use on movie nights.
• Subject to availability, safety and security, detainees at Grevillea can. request whether they wish to be detained in a single room, share a room, or occupy a room that is connected to another.

Every child of compulsory school age is provided with education suited to his or her needs and abilities, and designed to prepare him or her to return to society and for future employment.

• There are differences in the scope of VET courses currently available across the three facilities with media and art courses delivered through the holiday program at Parkville but not at the secure sites at Grevillea or Malmsbury. Art courses will resume during school term time.
• Detainees at Grevillea cannot be provided with any accreditation or qualifications for education and vocational course on site, unlike at Parkville or Malmsbury.
• Consistent with arrangements for secure units at Parkville and Malmsbury, detainees on a management plan may not be permitted to attend classes. Some detainees have alleged they have instead been provided with worksheets when in isolation, which may not provide sufficient stimulation.

• A education program is offered at Grevillea through a dedicated classroom and the use of common areas. Nine teachers from Parkville College have been indicted to provide education at Grevillea. On average, five or six teachers deliver classes each week day during school terms.
• The education services provided at Grevillea are modelled on those provided by Parkville College. During school term, up to six hours of classes are provided dix days per week, commencing at 9.30am. This includes English, Maths, Art, Music and PE.
• All detainees are able to attend classes provided that they are not on a management plan that restricts their access to classes.
• During school holidays modified services are provided at up to 6 hours per day on business days (with one hour of classes on the business days between Christmas and New Year). Over the holiday period most Vocational programs available at Parkville and Malmsbury will also be available at Grevillea including PE, music and hospitality.
• A range of equipment for educational purposes including iPads, keyboards and music recording equipment have been approved and will be provided.

Child's right to maintain contact with family, including by placing the child at a facility as close as possible to the place of the family's residence in order to facilitate visits.

• Barwon Prison is located some distance from Melbourne which may make it more difficult for families to visit.
• Several detainees have stated that they are embarrassed and discouraged from wanting their family to visit because of the location of Grevillea and its proximity to the adult prison.

• There is a designated visiting area. There is no restriction on family visits with detainees during visiting hours.
• The Department is providing taxi vouchers to allow families to take a taxi to and from Lara train station.
• Grevillea has a video conferencing room which detainees may book.
• A phone is available in the common areas. Detainees are given phone credit to make calls when allowed out of their cells.

Every child should receive adequate medical care throughout his or her detention provided, where possible, by health facilities and services of the community.

• There is a dedicated medical examination room in Side B of the Grevillea precinct.
• Medication required by detainees in the morning and evening is dispensed by Departmental staff with directions by medical staff employed by Youth Health and Rehabilitation Service (YHaRS).
• At least one medical staff member employed by YHaRS is present at Grevillea from 8 am to 10 pm each day, to distribute medication. In addition, YHaRS medical staff are available at Grevillea 24 hours per day on Monday, Tuesday and Wednesday, and on call between 10 pm and 8 am on other days.
• The level of health service available at Grevillea exceeds services offered at Malmsbury.

The promotion and facilitation of frequent contacts off the child with the wider

community, including communications with family, friends and other persons or

representatives of reputable outside organisations, and the opportunity to visit his or her home and family.

• There does not appear to be capacity for detainees at Grevillea to undertake visits or trips from the precinct, though the relevance of this consideration is subject to the circumstances of each individual detainees' detention in custody.

• Provision is made for visitation by family and outside organisations.

(b) The right in s 22(1) to humane treatment when deprived of liberty:

Detainees should not be subjected to hardship or constraint other than the hardship or

constraint that results from the deprivation of liberty.

• When the Grevillea precinct was first established, detainees experienced long periods of lockdown and isolation in their cells because the facilities and services at the precinct were still being put in place.
• Detainees on management plans may experience long periods of lockdown and isolation.
• Complaints by detainees about noise and loud banging were made while renovations were being completed on Side B.
• It was necessary at the initial establishment of Grevillea to handcuff detainees when transporting them to and from the outdoor area.

• Extended periods of lock down caused by building works and transitional arrangements at the Grevillea precinct no longer occur (based on evidence given by Marcel Jacques, Head of Operations at Grevillea). All of the construction work at Grevillea has now been completed and programs and services have been fully implemented. As a result, for all detainees who are not on a management plan, rooms are routinely unlocked at approximately 8.45am and locked again at 8pm, with a half hour lockdown period in the afternoon for a staff meeting.
• Management plans are not a form of punishment or discipline; they are a tool to assist a detainee to learn appropriate behaviours within the precinct. They are flexible and tailored to the circumstances of each detainee, are constantly monitored, and are only used for the minimum time possible to achieve their purposes. Processes for imposition of plans, including increased lock down and isolation is uniform across Grevillea, Parkville and Malmsbury.
• The renovations are almost complete to Side B of Grevillea. The functioning of both sides of the precinct means that DHHS staff can arrange for different activities (including quiet or private activities) to take place concurrently on the different sides. The video conferencing room has been soundproofed.
• Handcuffing is no longer required to transport detainees into the outdoor area given that there is now direct access from off the unit. Detainees can now access the yard directly from Side B.
• SESG are authorised to enter Grevillea as a third line response pursuant to the relevant Operational Order.
• The matters outlined above regarding facilities, amenities, education and family visits in the context of the right in s 17 are also relevant to the rights of detainees to be treated humanely when detained.

302 Also included in the brief was the Current Conditions Assessment that set out the facilities and services in place as at 29 December 2016 which Ms Peake considered when concluding that, as Secretary, she was capable of meeting the obligations under s 482 of the Act in providing care, custody and treatment in the best interests of the detainees placed in Grevillea. Conditions were assessed under eight categories, being accommodation, education and activities, communal areas and visitor facilities, medical care, cultural and religious needs, information and entitlements, lockdown, isolation and use of handcuffs, and role of Corrections Victoria staff.

303 Much of the material from the Charter Assessment was repeated in this document. I note that some aspects of the Current Conditions Assessment were the following.

(a) It recorded that it was only intended to place remandees over 15 years of age at Grevillea, although appropriate physical separation of remand detainees from sentenced detainees was possible. Each bedroom (presumably a reference to a cell) had appropriate facilities.

(b) A memorandum of understanding between the DHHS and the Department of Education provided for an education program to be delivered at Grevillea, based on the arrangements at Parkville College. Nine teachers would provide education in a dedicated classroom and other common spaces and detainees, unless on a restrictive management plan, would be able to attend education for six hours per day. A modified program would be offered during the Christmas holiday period and activity sessions including exercise classes and soccer games would be delivered by outside organisations. Although such courses would not be accredited in the usual way, credit towards secondary qualifications would be delivered through other programs such as recognition of prior learning.

(c) There was a dedicated medical examination room in Side B[203] and medical staff dispensed medication required by detainees. Medical staff were present from 8 am to 10 pm each day to distribute medication and medical staff were available at Grevillea 24 hours per day Monday - Wednesday and on call between 10 pm and 8 am on other days.

(d) Appropriate arrangements were in place to provide for cultural and religious needs and to provide information about entitlements and avenues for complaint.

(e) Extended periods of lockdown caused by building works and transitional arrangements at Grevillea were no longer expected to occur and, for the same reason, handcuffs would no longer be required to transport detainees into the outdoor area.

(f) Processes for managing client behaviour were now uniform across Grevillea, Parkville and Malmsbury and in compliance with statutory obligations. There were now no corrections staff in Grevillea and an Operational Order was in place governing the use of the Security and Emergency Services Group (SESG) as third line response to critical incidents. This Operational Order was developed in consultation with the principal Commissioner for Children and Young People and expressly prohibited the use of dogs and teargas.

304 Ms Peake considered points of concern arising out of the reasons for judgment in Certain Children, and took a number of steps to address those concerns.

305 She spoke with representatives of the DET to satisfy herself that appropriate education would be delivered at Grevillea after 29 December 2016. She consulted with the relevant union about appropriate staffing levels and also directed that a process that sought expressions of interest for Corrections Victoria staff to work in Youth Justice be set up. She arranged for additional mental health staff to be available and, to ensure the safety of young people and staff, applied to the Commissioner of Police for authorisation for the use of appropriate weapons in Grevillea.

306 Ms Peake considered that, in the best interests of all young people within the system, there was a need for the capacity available at Grevillea to be used. The damage to the facility at Parkville had significantly limited her ability to move and separate young people to ensure the safety of all children in her care because both Parkville and Malmsbury were operating at or above capacity.

307 As DoJR was responsible, through Corrections Victoria, for Barwon Prison, arrangements between DHHS and DoJR were documented in a memorandum of understanding effective from 29 December 2016. This document was additional to the Operations Order that governed deployment of the SESG.

308 Ms Peake stated that she considered the information and documents just noted and satisfied herself that the proposed facility at Grevillea was compatible with the Charter and consistent with her obligations under the CYF Act. In her view, despite the limitations of the site and the challenges it posed, the use of Grevillea for accommodation for youth justice purposes until the repairs at Parkville could be completed was in the best interests of all young people in her custody. She advised the minister accordingly.

309 On the Minister's recommendation, the Governor in Council made Orders establishing Grevillea as a remand centre and a YJC on 29 December 2016.

310 Ms Peake described the operation of Grevillea within youth justice more generally:

(a) Placing clients: There are effectively eight cohorts of youth in the Department's custody that must be kept separate, based on factors including sex, age and whether they are on remand or sentenced. The percentage of youths on remand has dramatically increased over the past two years. One challenge is the constant change within this cohort, which also tends to exhibit a greater degree of volatility, impulsiveness, and difficulty with engagement. The dynamics within the remanded cohort create particular concerns with respect to safety, security, aggression and vulnerability. On occasion, a high number of placement decisions need to be made rapidly. Overcrowding significantly exacerbates these concerns.

(b) Separating remandees from sentenced youth: Although Grevillea is scheduled as both a remand centre and a youth justice facility, it has been used to accommodate a remand population. On occasion, sentenced youth have been held there including 19 sentenced young people who were originally held there for a short period post-conviction before they were moved back to Parkville or Malmsbury, or for a short period when capacity was exceeded at the other facilities.

(c) Education: Shortly after Grevillea was first established, teachers from Parkville College (a registered specialist government school) have provided an educational program, delivering the same hours of education as are delivered at Parkville and Malmsbury. The arrangements for this education program have been formalised in a memorandum of understanding between DHHS and DET. Cross-examined, she agreed that Parkville and Malmsbury had multiple classrooms, whereas Grevillea has one. Because Grevillea was always intended to be a temporary youth justice facility, it has not been registered with the Victorian Registration and Qualifications Authority as a separate campus. Given that it is not intended to be a long term YJC, and with the registration process taking over 12 months, it was not practicable to proceed with registration and alternatives for recognition of learning at Grevillea have been adopted.

Ms Peake stated that her advice was that, pursuant to the MoU signed with the Secretary of DET, education was being delivered at Grevillea. She rejected the cross-examiner's suggestion that the set up at Grevillea remained a major obstacle to delivering any kind of education, because it was an isolating, tense and bleak environment for teaching staff, and that there were ongoing concerns about the pressure to compete for space with staff, visitors, lawyers and corrections staff in the only teaching space. This suggestion was not supported by evidence from the plaintiffs.[204]

(d) Isolation: There are strict policies and procedures around the use of isolation of incarcerated children. Isolation for longer than 24 hours must be approved by the Director, Secure Services. Unit lockdowns are to be in place for the shortest period possible to allow for the ongoing safe functioning of the unit. Circumstances in which its use is authorised include shortage of staff to safely operate the Unit, lack of accommodation options to safely manage young people and a critical incident. Cross-examined, Ms Peake agreed that there had been a period when building works were being undertaken in which children had not been into the outdoor area of the Unit for up to two weeks. She acknowledged there had been discrepancies in the information provided to the Children's Commissioner regarding the number of isolation incidents in the first two weeks of December 2016, but did not know which figures were correct. Ms Peake understood, on advice, that isolation obligations and policies had been adhered to.

(e) Visitors: Cross-examined, Ms Peake stated that only after the re-gazettal of the facility did she become aware that as a matter of policy visitors with a criminal record were unable to enter Barwon Prison. DoJR has since advised her that there will be case by case assessments of visitors to Grevillea rather than a blanket application of policy in that respect.

(f) Number of children at Grevillea: Cross-examined, Ms Peake stated that she had learned through the first period of Grevillea's operation that it was most effective at one half to two thirds capacity. She was unaware that in January 2017 the unit had reached 28 detainees.

(g) Handcuffing: Ms Peake was unaware of the need to handcuff children to move between the Unit and the exercise yard, which was an operational matter. She stated that DHHS had very strict policies around the use of handcuffs and she was advised that handcuffs are only used when required for the safe custody of young people and the security of the centre.

(h) Corrections Staff: Office of Corrections staff have been present at Grevillea in different roles and for different purposes. From 29 January 2017, ERG staff have been rostered to work under the supervision and management of the youth justice officer in charge in response to a problem of staff shortages affecting the care and welfare of detainees.

311 Ms Peake relied on the advice of DoJR security experts when recommending to the Commissioner for Police that the use of extendible batons and OC spray be allowed within Grevillea (in the context of the Weapons Exemption). Cross-examined, she agreed that the potential for indirect adverse effects from the use of OC spray upon persons in the enclosed environment at Grevillea had been raised, but that on balance it was considered an appropriate risk to secure overall safety.

312 Ms Peake provided initial advice with regard to the Weapons Exemption to the Commissioner of Police for approval. That advice preceded the gazettal by the Governor in Council on the advice of the Minister for Police who was provided with a brief in relation to the proposed exemption. The brief included a Charter assessment that, after identifying the relevant human rights as those in ss 10(b), 17(2), 22, and 23(2) stated:

The proposed exemption has been assessed as compatible with the Charter. Given that it is appropriately constrained to the relevant prison officers' duties in relation to the Precinct and is subject to the specified conditions, and given the additional restrictions and safeguards that apply by virtue of the CYF Act, the operation order and the other relevant instruments, it is unlikely that the proposed exemption will limit any Charter rights. Further, even if certain rights were limited through allowing the use of extendable batons and OC spray in the Precinct, the applicable constraints would be demonstrably justified in accordance with section 7(2) of the Charter.

313 This assessment had regard to the limitations and constraints upon the deployment of SESG under the relevant Operations Orders, the specialist training of SESG and ERG officers, and the particular direction given to SESG regarding the additional considerations they must take into account, as informed by the Charter, which applied because the detainees are children.

...the use of force (including the use of OC spray and extendable batons) will only occur as a proportionate response to the safety threat posed by a person. Further, decisions to use such force will include the consideration of the detainee's age, remandee status, their safety, health and wellbeing as well as their right not be to [sic] subject to cruel, inhuman or degrading treatment. The powers will be used to ensure the security or good order of the Precinct (including any person in the Precinct) or the safety and security of any detainee in the Precinct.

315 The Operations Orders provided that when exercising powers and making decisions during a deployment, particularly in relation to the use of force, SESG and ERG members are subject to the Charter and must consider Charter rights including the best interests of the children in detention as a primary consideration but that, nevertheless, in appropriate circumstances Charter considerations could be balanced against other demonstrably justifiable needs to ensure the good order of the Precinct or the safety and security of any person in the Precinct.[205] The second Operations Order, made on 29 January 2017, includes the following guidelines regarding the use of OC product:

(a) An evacuation route must be available before an OC product is used.

(b) A suitably trained youth justice medical professional must be present at the Precinct when an OC product is used, to render medical assistance if required ("Oxy Viva" is to be available). An area for medical treatment of detainees and Precinct officers must be available in the Precinct and clearly identified prior to the use of an OC product.

(c) Members must take into consideration environmental factors which may affect the welfare of all personnel within the area prior to using OC products.

(d) Decontamination procedures will be carried out as soon as possible following the use of an OC product.

(e) OC products and their capabilities are not to be discussed with detainees.

316 Ms Peake also gave evidence as to the current situation in respect of the various matters discussed that are relevant to the issue of remedies. She stated that as at 22 March 2017 there were no available secure beds at either Parkville or Malmsbury. If Grevillea were to close and the detainees were required to be moved to either of Parkville or Malmsbury it would necessitate further double bunking and the ongoing use of isolation and/or holding cells, increasing safety risks for staff and children. Her assessment is that having both Parkville and Malmsbury at over capacity would perpetuate offending behaviour which would not be in the best interests of any young person in the facility. Ms Peake stated that she considers the facility to work best at about half to two-thirds of its capacity. That arrangement has been in place for the month of March 2017, resulting in a decrease in the lockdowns and isolation of young people. She states that teachers from Parkville College attend at Grevillea daily.

317 Ms Peake stated that Grevillea was 'always intended to be temporary accommodation' while repair work is undertaken at the other youth justice centres. Her assessment was that Grevillea will likely be required until August or September 2017, at which time sufficient building work will have been completed across the Parkville and Malmsbury facilities to safely accommodate all of the children in the Secretary's custody.

318 Robert Pemberton is the Acting General Manager at Grevillea. He described the general layout of the facilities and the services available within it as at 23 March 2017, adding the following to descriptions set out elsewhere:

(a) Medical Facilities: Grevillea has a dedicated medical examination facility that comprises two cells that have been converted for that purpose. A range of medical services[206] are provided by Youth Health and Rehabilitation Service (YHaRS) in an office facility set up in a portable building located just outside the unit within a 'sterile area' (i.e. within the adult prison site).

(b) Education: Teachers from Parkville College provide five hours of education per day on a normal day during school term. The provision of education is subject to operational limitations such as security measures that restrict access to teaching spaces. The young people are separated into three groups that rotate through the communal area in Unit B, the communal area and classroom in Unit A and the exercise yard. For the children to access the outdoor area from Unit A they are required to walk handcuffed through the sterile zone of the adult prison. Construction of a secure walkway from these two points to obviate the need for handcuffs is well advanced.

(c) Staffing: On an ordinary day there are at least 11 DHHS employed youth officers, one Supervisor and one Coordinator present at Grevillea at any time. A Unit Manager is present for at least 8 hours per day and the Operations Manager and Principal Practitioner may also be present. There are four Corrections Victoria ERG staff present at Grevillea at any one time. ERG staff mix with DHHS staff within the Unit. SESG are available and will respond to critical incidents.

(d) Unlock hours and Individual Behaviour Management Plans (IBMP): In the usual course of the day, the young people at Grevillea have 10 hours per day outside of their cells. However this standard is variable due to security needs at the centre. If a client's behaviour presents a security or safety risk at the centre, he can be placed on an IBMP. The plan may involve some restriction on the client's unlock time for safety reasons.

(e) Gold/Silver/Bronze system: On arrival at Grevillea clients are given an induction book that informs them about the operation of the Unit, including the 'promoting positive behaviour program'. The program has three levels - Gold, Silver and Bronze - each of which entitles the client to different privileges. Originally the levels were linked to different levels of family visitation rights but that has since stopped. There is a difference in unlock hours, with Gold level usually receiving one hour more out of cell each evening than those on Silver or Bronze. As at 23 March 2017, one client was on 'Bronze', five were on 'Silver' and eight were 'Gold'.

(f) Visits: The visitors' centre at Grevillea is open between 10 am and 2 pm, seven days a week. Family members can visit clients there and taxi vouchers are provided to some families for travel between Lara train station and Barwon Prison. Clients are also able to receive visits during unlock hours from medical and legal professionals as needed.

(g) Interaction with adult prisoners: There is no vantage point from within the prison that would allow an adult prisoner to see into Grevillea, nor is there the ability for the children to see into adult prisoner areas. While situated within the perimeter of Barwon Prison, Grevillea is entirely separate from the adult prison facilities.

319 On 23 March 2017, Mr Pemberton asked four detainees whether they wished to leave Grevillea. Damien Keryk said, "I do not know if I would like to leave Grevillea". Marco Gillespie-Jones said, "I want to leave Grevillea." Andrew Pound said, "I want to stay at Grevillea." The fourth detainee, who is not a plaintiff in the proceeding, said, "I want to stay at Grevillea or Parkville but I do not want to go to Malmsbury."

320 Craig Howard is the Assistant Commissioner, Security and Intelligence Division of Corrections Victoria, within the DoJR. He is responsible for security issues in the Victorian prison system, including the management of the SESG. Each prison has ERG officers, who report to the General Manager of the prison where they are based. SESG are prison officers specially selected to undertake additional training and must meet higher fitness and readiness standards than regular prison officers.

321 Pursuant to a Memorandum of Understanding between the Secretaries of the DHHS and the DoJR dated 20 December 2016, DHHS has engaged, and may require, the support of Barwon prison staff (including ERG and SESG) to ensure the security and good order of Grevillea. The MOU provided that an Operations Order signed on 5 December 2016 would govern the roles of Corrections Victoria and DHHS if there was a critical incident. Two later addendums deal with the deployment of ERG and SESG within Grevillea.

322 During November and December 2016, DHHS and Corrections Victoria assessed security practices at Grevillea against practices and procedures in Victoria and other Australian jurisdictions and determined that extendable batons and OC spray were an appropriate option to reduce injury and other threats to the safety of persons at Grevillea, both detainees and staff. Mr Howard stated that:

The use of extendable batons and OC spray, which I refer to as "defensive accoutrements", assists in creating distance between staff and detainees and/or compliance during a critical incident. OC spray may bring about compliance from detainees with the least amount of physical force having to be applied by staff. It is therefore less likely that all staff or detainees will be injured or have long standing injuries if OC spray can be used. OC spray causes acute but temporary physical discomfort which allows staff to gain control during a critical incident. OC spray is a "less-than-lethal" tactical option that must be carried and used in conjunction with extendable batons and body worn cameras.

323 On 27 January 2017, following DoJR recommendation and advice from the Police Minister, the Governor in Council made the two weapons exemptions for the ERG and SESG permitting the use of extendable batons and OC spray within Grevillea. The exemptions are subject to conditions that the exempted officers must perform their duties in accordance with the CYF Act and have successfully completed training requirements.

324 Prior to that Order, SESG officers were permitted to carry such weapons pursuant to the Chief Commissioner's approval under s 8C of the CoW Act.

325 Following the making of the Weapons Exemption, Mr Howard was aware of the deployment of OC spray on two occasions at Grevillea:

(a) On 30 January 2017, two deployments occurred, first by an ERG officer to obtain compliance from a detainee and secondly later in the day in the exercise yard, when the spray dissipated without making contact with any person; and

(b) On 13 February 2017, two deployments occurred following an incident in the common area of Wing B - firstly after a child struck an ERG officer, and secondly, when detainees were throwing chairs at ERG officers as they exited the officers' post.[207] Mr Howard opined that although the second deployment involved significant secondary exposure for persons not directly involved in the incident, it was preferable to the alternatives for management of that incident, which may have allowed the situation to worsen or required use of physical force.

326 Matthew Belleville is the Acting General Manager, Parkville Youth Justice Precinct. Parkville Precinct comprises four separate secure areas. Approximately 50% of the facilities at Parkville were destroyed in the November 2016 incidents. As at 22 March 2017, Parkville had the capacity to house a total of 63 clients, with resort to isolation rooms and holding cells required to accommodate any additional clients. On that date, Parkville was required to accommodate a total of 68 clients of whom 49 were 15 - 17 year old male remand clients.

327 The Cullity unit is for females only and the Barnett unit is for 10 - 14 year old males. Isolation rooms and holding cells used for extra accommodation mostly do not have a toilet, shower or running water and both the Cullity and Barnett units have been split to separate cohorts of different age and gender.

328 Monica Tulloch is the Acting General Manger, Malmsbury Youth Justice Precinct. Malmsbury accommodates up to 135 clients at full capacity, with separate secure sites and senior sites. As at 22 March 2017, Malmsbury was at capacity. Double-bunking of clients had not occurred, but would be required if there was an influx of clients from Parkville or Malmsbury. Double-bunking raises significant concerns including risks of sexual and physical assaults between clients.

329 Tracey Beaton is the Chief Practitioner and Director of the Office of Professional Practice, within the DHHS. Her role in the Department is to act as the principal clinician and advisor on human services practices. Ms Beaton stated that as a result of the incidents at Parkville between 12-14 November 2016 removing 60 beds from its capacity, there were not enough beds to continue to accommodate all youth justice clients either at Parkville or in the other facilities within the youth justice system. Displacement from Parkville caused extreme over-crowding, creating an environment of significant risk across the youth justice system.

330 Ms Beaton stated that Grevillea was developed rapidly in response to this emergency shortage of secure accommodation within the youth justice system.

331 The sentenced and remand cohorts have different needs. Due to large remand numbers, there is a constant flow of young people entering and leaving the youth justice system. Most have a history of trauma and can suffer conditions such as hypervigilance. Their continued presence in the youth justice system is dependent on the outcome of their court cases. They do not have access to the same rehabilitation programs as are provided to sentenced young persons, who are usually actively engaged in rehabilitation. As young people under sentence have a release date, in practice, the sentenced cohort present with more stable and engaged behaviour than the remand cohort. Because fewer services were available at Grevillea, Ms Beaton considered that the detriment of a placement at Grevillea would be greater for sentenced children (in terms of their wellbeing) than those on remand.

332 There is a mental health nurse available at Grevillea 24 hours a day, a level of service not available elsewhere in the system. In late February 2017, a psychiatric team from the Alfred Hospital conducted specific mental health assessments for all children in Grevillea, at the request of DHHS. Young persons within the youth justice system hold a broad range of complex needs, consequent upon factors like their past history, trauma, cognitive and physical disabilities, learning difficulties, substance abuse and want of a stable home. Many require specialist management of their behaviours. Hypervigilance is common, which creates particular management issues around accommodation and movement between facilities.

333 DHHS makes daily assessments about the appropriateness of the placement of every young person in the youth justice system. Ms Beaton described the process for transferring a child to Grevillea. The Secretary, Director of Secure Services, or her delegate, who is ultimately responsible for signing the transfer warrants, acts on the recommendations of a Client Movement Panel. An assessment of whether a young person is suitable for transfer to another Youth Justice Centre is assessed under an internal policy called the 'Client Flow Process'. A document called the 'Proposed Client Transfer Report', also known as the 'Client Transfer Matrix', is used by operational staff for this purpose. The Matrix identifies the matters that must be considered when determining whether a young person should be transferred, including current charges, offence history, support network, disability, progress with education, interaction with peer group, health, religious needs, case management continuity, behavioural support plan and risk of involvement in future security incidents.

334 The Panel meets twice a week to discuss proposed transfers of young people from Parkville and Malmsbury to Grevillea, based on the recommendations of the General Managers of Parkville and Malmsbury. The Panel considers all of the collated information, the rights of the young person, and the obligations of the Secretary when determining the suitability of any particular young person for transfer. Other considerations for a transfer to Grevillea may include dynamics between individuals or groups, access to health and rehabilitation services, and the young person's view. It is usual practice to discuss the proposed transfer with the young person in question, but this generally takes place after the decision to transfer has been made, in order not to create undue anxiety about a transfer decision that may not eventuate.

335 Direct admissions are not made to Grevillea, with all detainees transferred either from Parkville or Malmsbury. Ms Beaton produced copies of the client transfer matrix for each of Andrew Pound and Marco Gillespie-Jones, the plaintiffs who maintained challenges to their transfer decisions.

336 Jodi Lee Henderson is the Acting Director, Secure Services, within the DHHS. Secure Services is responsible for the management of Youth Justice Custodial Services. As the Secretary's authorised delegate, Ms Henderson made both of the challenged transfer decisions. She deposed to having considered on each occasion the recommendation of the Client Movement Panel and the contents of the Matrix prepared for each child.

337 With regard to the making of transfer decisions, the Charter assessment states as follows:

The transfer process currently in place ensures that the rights and interests of detainees are properly taken into account, and that detainees are treated humanely during the transfer process. Evidence given by Tracey Beaton, Chief Practitioner and Director of Office of Professional Practice in DHHS, states that transfer decisions are made by the Secretary's delegate based on recommendations made by a Youth Justice Movement Panel. The Panel makes transfer recommendations in accordance with a process that considers the rights of the detainee and the obligations of the Secretary by reference to internal Departmental policy documents and decision-making guide [these documents were attached]. These documents require consideration of the human rights of the detainee to be transferred.

338 Senior representatives from the Youth Health and Rehabilitative Service are members of the Youth Justice Movement Panel and provide guidance on the appropriateness of continuing placements and transfers, taking account of medical and mental health considerations. They also advise on necessary services and supports for individual clients.

Decision to transfer Marco Gillespie-Jones to Grevillea

339 In the case of Marco Gillespie-Jones, the information that Ms Henderson considered was detailed and the plaintiffs did not contend that mandatory relevant considerations were not considered or that the decision might be impugned on traditional grounds for judicial review. In respect of his human rights, Ms Henderson identified the following five rights as engaged; protection of families as the fundamental group unit of society, the right to protection in the best interests of the child, segregation from adults and age-appropriate treatment, cultural rights, humane treatment and protection from torture and cruel inhuman or degrading treatment. Ms Henderson noted that Marco's family might find it easier to visit him at Grevillea as they resided in the Western Suburbs, but noted that support services would need to provide Marco's family with options to increase their contact with him, which had previously been limited to telephone contact. It was not known whether they had a car. Marco was not considered currently at risk of physical or psychological harm and could continue to participate in vocational, recreational and educational programs at Grevillea. The child's best interests would be protected. He would receive education and health services and continue to be housed in an age-appropriate environment with other remand clients. Having had difficulties with other young detainees in the past, Ms Henderson noted that if transferred to Grevillea, Marco's interactions with his peers would be monitored more closely than at other youth justice centres. She noted that his engagement with custodial youth justice workers at Parkville would continue.

340 No requirement for culturally specific support had been identified. Removal to Grevillea would not interfere with his dignity or humanity and would not be degrading or humiliating. He would continue to receive adequate accommodation, food, hygiene, clothing and bedding. The prospect of serious ill-treatment involving his humiliation or debasement had not been identified. She did not consider that the decision would infringe his relevant human rights.

341 The Matrix does not refer to whether or not the proposed transfer had been discussed with Marco. Cross-examined, Ms Henderson confirmed that she had not been informed whether this had occurred, and nonetheless made the decision in respect of his transfer. Ms Henderson deposed that based on her consideration of the matters set out in the Matrix, and her knowledge of capacity issues at other youth justice centres, she was satisfied that it was appropriate to transfer Marco Gillespie-Jones to Grevillea.

342 Once again, the information considered was detailed and it was not contended that mandatory relevant considerations had not been taken into account or that the decision might be impugned on other traditional grounds for judicial review. Ms Henderson noted that Andrew had been identified as functioning at a low level and required a high level of support, with Youth Justice exploring options in relation to a cognitive assessment. Given the increased staff supervision at Grevillea she did not consider his disability or associated needs would be adversely impacted by a transfer to Grevillea.

343 Ms Henderson noted that Andrew had reported a largely healthy relationship with his family, who lived in Epping and may have difficulty travelling to Grevillea. His mother and youth worker had expressed concerns about his relocation. She considered that supports would adequately mitigate any adverse impacts on his support network. She noted that he did not present with any mental health or physical health concerns at the time of the Report, but that he had in the past received mental health services and had recently been referred to a private psychologist for grief and loss counselling. Ms Henderson noted that Andrew had a history of engaging in physical altercations with his peers and threats to staff, which could be managed by providing him with an allocated worker each day at Grevillea.

344 She did not consider that the decision would infringe his relevant human rights. She identified the same human rights as set out above in respect of Marco Gillespie-Jones as engaged by the transfer decision. I have noted her observations concerning Andrew's contact with his family. Ms Henderson considered that Andrew 'would be supported to maintain telephone contact with his family and consideration would be given to what supports could be offered to [his mother] to encourage visits.' Because he could continue to participate in school holiday programs and his education at Parkville if transferred to Grevillea, there would be no limitation on his right to such protection as was needed in his best interests by reason of being a child. Youth Justice staff and YHaRS would continue to support and engage with him at Grevillea. Being of African background, his cultural rights could be met through engagement with the cultural team if transferred to Grevillea. Andrew would be housed with other remand clients and continue to receive adequate accommodation, food, hygiene, clothing and bedding. A transfer to Grevillea would not interfere with his dignity or humanity or degrade or humiliating. Finally, the prospect of serious ill-treatment involving his humiliation or debasement had not been identified.

345 Ms Henderson states that she considered the fact that Andrew had requested to be transferred to Grevillea. Based on her consideration of the matters set out in the Matrix, she was satisfied that it was appropriate to transfer Andrew Pound to Grevillea.

346 Victoria Idoniboye is a Practice Leader at the Grevillea Youth Justice Precinct, employed by the DHHS. She deposed to two conversations she had with Andrew Pound. Firstly, in or about mid-February 2017 she met with him to discuss information she had received to the effect that he felt unsafe and wanted to leave Grevillea. During that meeting, she recalled that he stated that while he did not want to be in any jail he did not have any specific worries about being at Grevillea. Secondly, on about 5 March 2017 she met with Andrew to discuss his views on a possible transfer out of Grevillea, during which he said words to the effect that he would refuse to go to Parkville or Malmsbury because he was 'good here'.

347 The plaintiffs relied on four affidavits of Alina Leikin (the plaintiffs solicitor, Human Rights Law Centre), and affidavits from nine of the plaintiffs. Ms Leikin, but none of the plaintiffs, was cross-examined. The plaintiffs also relied on the evidence of two independent witnesses, Ms Liana Buchanan, the Principal Commissioner for Children and Young People for Victoria and Dr Adam Deacon, a consultant psychiatrist. The defendants made some limited admissions in response to a Notice to Admit.

348 Ms Leikin has visited Grevillea on numerous occasions since 26 November 2016. She described the layout and general conditions at Grevillea based on her own observations during her visits and on instructions from various plaintiffs.

349 The Grevillea Unit consists of two wings - Wing A and Wing B - of identical design, mirroring one another, separated by a common wall and a central control room with large glass windows looking into each wing. The physical layout of the unit is a maximum security prison design consisting of two tiers of cells with heavy doors, opening into the common area below or adjacent. The second storey of each unit contains only a narrow walkway onto which all cell doors open. The wings have bare walls, limited natural light and no air conditioning. From inside the unit one can see high prison walls and razor wire.

350 The common areas in each wing are rectangular and approximately 20 meters by 10 meters in size. The central area in each wing is the only internal common space and it is not possible for children to be separated within that common area. Within the open central area in each wing is a small kitchenette area, two couches and approximately three tables and ten chairs. The central areas have minimal natural light and are illuminated by florescent lighting from the ceiling. The acoustic environment in each wing is noisy and echoey.

351 In each wing, there is one additional room that is separated from the common area by a transparent glass wall, clear from floor to ceiling. In Wing A this room is approximately 4 meters by 5 meters and in Wing B approximately 3 meters by 3 meters. Internally, each room is completely visibly exposed to the common space. Ms Leikin has used both of these rooms for client meetings, and they have been used at various times by medical practitioners, for delivery of education and for video link communications to courts.

352 Children in Wing A cannot access the outdoor recreation area directly. They must be either escorted through Wing B or, has been the practice, walked from Wing A to the outdoor area through the adult prison.

353 Ms Leikin has spoken to a number of children, not all of whom were her clients, about their feelings of fear, isolation, anxiety, loneliness and boredom at Grevillea. Many complained that it was like an adult prison. Several children related being transferred to Grevillea after stating that they did not want to go there. On 16 January 2017, she observed that some children were on rotations that allowed them three hours a day out of their cells while other children were allowed between half an hour and one hour at different times of the day out of their cells.

354 When she attended Grevillea on 20 January 2017, she was denied access to the multipurpose space because it was being used by Parkville College for programs. She conducted client interviews in the non-contact box within the visitors centre. One plaintiff instructed her that he had not been in the outdoor area for six or seven days. His brother, who was on parole, was not permitted to visit him.

355 On 6 February 2017, Ms Leikin observed that the educational program was running in the common area of one of the Wings and that the environment was noisy, volatile and chaotic. The meeting room was extremely noisy due to renovations. One of the plaintiffs instructed her that he had recently been on a behaviour management plan, spending 23 hours per day in his cell and being handcuffed in the internal common area or the exercise yard during the entire period that he was out of his cell. He had been subjected to this regime for six days. Another plaintiff (Andrew Pound) instructed her that he no longer received treatment from his private psychologist who would not travel the distance to Grevillea to see him. Other children complained that they were not able to receive family visits because of the distance of Grevillea from Melbourne.

356 On 9 February 2017, Ms Leikin was denied access to the room usually made available for professional visits as it was being used by a psychiatrist. The visitor centre was also unavailable due to repair work. Professional visits that day had to be conducted in an open space that lacked visual and aural privacy.

357 On 16 February 2017, Ms Leikin was able to see all of her detained clients. She also observed a number of police officers together with representatives of the Commission for Children and Young People, whom she believed to be investigating allegations of assault, following an incident on the evening of 13 February 2017.

358 Ms Leikin deposed that she was told of the lockdown regime at Grevillea. One such occasion was on 1 March 2017 when she attended Barwon and met with Andrew Pound and Marco Gillespie-Jones, among other clients. Although initially denied access because the boys were locked down on a management program, access was facilitated by the defendants' solicitor. Each boy told her that he was being held in his cell for 23 hours per day with one hour outside of cell. Andrew told her that he knew a procedure was in place, whereby he would be handcuffed for his single hour outside of cell per day. Marco did not know that such a procedure was in place. Neither boy knew when the regime would end.

359 Ms Leikin described the only designated classroom or education space for children as being the room adjoining the common area in Wing A, described above. The room is capable of holding about 9 small chairs, is not air-conditioned and is not sound-proofed to block out noise from the common area and surrounding cells. Grevillea is not a registered school, nor a registered campus of Parkville College. Children cannot obtain their VCAL or VCE accreditations at Barwon. All other youth justice facilities are registered school campuses. Grevillea does not have capacity to offer trade-based VET subjects such as wood work, carpentry and metal work.

360 Visitors to Grevillea must pass through, and be approved by, the security at the main entrance of Barwon Prison which is staffed by Corrections Victoria. At times, no facilities for confidential visits with legal representatives have been available except non-contact boxes in the visitor's centre, in which discussions can be overheard. The only way for children to call their legal representatives is by using a phone box, of which there are two, located in steel boxes within the common area of each of Wings A and B. Telephone conversations can be overheard by staff or other children in the common area. Noise in the common area can make it difficult to have conversations with children over the phone.

361 Ms Leikin's most recent visit to be discussed in an affidavit was on 10 March 2017. On 1 April 2017, Griffin Hosking, a plaintiff who had been transferred to Parkville, gave instructions that he wanted to go back to Grevillea. He was told that, were that to occur, Ms Leikin would cease to act as his solicitor.

362 Marco Gillespie-Jones was transferred to Grevillea on 1 February 2017. He described an incident on 13 February 2017 when he was sprayed with capsicum spray by an SESG corrections officer.[208] Another boy had been sprayed when they were inside from the yard, but he was not sure why. As Marco ran towards his room he was also sprayed. He stated that he was unable to see for around half an hour and did not receive any medical treatment. He has been told that he will have to wait three or four weeks to visit a hospital to remove glass in his forehead from an assault that occurred a few months prior, which continues to hurt when there is pressure on that spot, especially in his sleep.

363 On 14 February 2017, the day prior to affirming his affidavit, Marco had had no time out of his cell. He stated that: 'I feel very unsafe at Barwon'. Marco Gillespie-Jones was one of two plaintiffs remaining at Grevillea Unit at the time of trial. At the date of judgment he still remained at Grevillea.

364 Andrew Pound was transferred from Parkville to Grevillea on 1 February 2017. He stated that at Parkville he would see his mother once a week and his private psychologist once a fortnight. Due to the distance to Barwon his mother can only visit once a month and he has not seen his psychologist. He has also stopped seeing his worker at the Youth Support and Advocacy Service who he had been seeing regularly to deal with issues relating to substance abuse since mid-2016.

365 He stated that he cannot concentrate during the education programs at Grevillea because it is noisy and chaotic. Most of the classes are in the common room, or in one small room which can fit around 6 to 8 people at a time. His favourite subject at school was cooking. At Grevillea there are no proper kitchen facilities. He described the 'Gold, Silver, Bronze' reward system, that originally had those on bronze locked down at 4 pm, with everyone else able to stay out until 8 pm; but had changed so those on bronze and silver are locked down at 5 pm and those on gold are able to stay out until 8 pm.

366 He described an incident on 13 February 2017 at around 6 pm when he was eating dinner in the common room in Wing B. One of the boys kicked an SESG Corrections staff member in the leg and four SESG members started spraying the room with capsicum spray.[209] All ten boys who were in the room and one staff member were sprayed. He was taken outside and then back into his cell where he was cuffed for around half an hour. After the incident he was seen by a doctor who gave him an asthma puffer.

367 Andrew described being on behaviour management plans at Grevillea where he is in his cell for 23 hours a day, sometimes for two days at a time. He said he has also been on a plan where his one hour outside of cell is alone and he was required to wear handcuffs for that time. He had never been on a plan with so many hours of isolation before. On 14 and 15 February 2017, he had had half an hour and one hour out of his cell respectively. He stated: 'When I'm locked in my cell for 23 hours, I feel like I am losing my mind. It is lonely, boring and depressing'.

368 On 25 February 2017, the usual visitors' centre was unavailable and he was brought handcuffed into another portable room behind Grevillea to receive a visit from his mother. He had never previously been handcuffed to go to a visit.

369 As at 10 March 2017, he described being on rotation, meaning that every hour the children move anti-clockwise between the common areas in Wing A, Wing B and the yard. To re-enter Wing A from the yard they are handcuffed to walk through part of the adult prison. This occurs around 4 times each day.

370 He stated: 'Barwon feels like an adult jail environment. I can see razor wire and everything about it feels bad'. Andrew Pound was the second of the two plaintiffs remaining at Grevillea at the time of trial. On 9 May 2017, I was informed by letter from the defendants' solicitor that Andrew is no longer detained at Grevillea.

371 Simon Last stated that he was transferred from Parkville to Grevillea on around 6 January 2017. Between 15 January and 18 January 2017 the group was 'in rotations' which resulted in him having three hours outside his cell each day. He said he missed his brother who would visit him at Parkville each Sunday, but who had not been let in to visit during his second week at Grevillea. At Parkville he had been completing a course to be able to obtain work on construction sites, but did not believe he could finish it at Grevillea.

372 He said that 'Barwon... feels like an adult prison', with 'barbed wire everywhere'. He has since been transferred out of Grevillea.

373 Liam Arnell stated that he was transferred from Malmsbury to Grevillea on 12 January 2017. Following his arrival at Grevillea he had approximately one hour outside of his cell, within the enclosed unit, on 14, 15 and 16 January. Between 14 and 19 January, he did not go outside in the fresh air. He described the 'Gold, Silver, Bronze' reward system at Grevillea, with those on 'Bronze' being locked down at 4 pm each day, until around 9-10 am the following morning.

374 At Parkville his mother and younger siblings would visit every few weeks, but Grevillea was too far for his family to come. Liam stated that he had been doing well at school at Parkville, but that he could not do VCAL subjects like metal work and wood work at Grevillea.

375 He said that 'I hate being at Barwon. I feel like I'm in an adult prison'. He has since been transferred out of Grevillea.

376 Griffin Hosking stated that he was transferred from Parkville to Grevillea on 1 February 2017. He described how, at Grevillea, school is done in the common area which is noisy and he is unable to concentrate. It is more difficult for his family to visit and they will not be able to see him once a week as they used to.

377 On 13 February 2017 he was in the exercise area playing soccer when he saw another boy being sprayed with pepper spray. He saw lots of boys being sprayed and a staff member was also sprayed by accident. He was not involved in the incident. The following day, on 14 February, he had half an hour outside of his cell.

378 He stated: 'I feel like I'm in an adult prison. There's barbed wire everywhere ... I feel much worse being at Barwon and everything about it is worse'. He has since been transferred out of Grevillea.

379 Phillip Davey was transferred to Grevillea on around 1 February 2017. On his first day in the unit he was punched by two other boys. He described feeling wound up all the time and is unable to relax. There is no privacy to shower or use the toilet in the cell. The classes are held mainly in the open area which is very noisy. Grevillea is too far for his family to visit.

380 On 13 February 2017 at around 6.30 pm he was standing near the table tennis table in the Unit when he heard arguing. The ERG started spraying pepper spray and he was unable to breathe. The doors opened to the yard and he went outside. When he was brought back into his cell he was left handcuffed for around 10 minutes.

381 On 14 February Phillip had half an hour outside of his cell, and on 15 and 16 February he had one hour outside. As at 16 February he had not had a family visit at Barwon. His mother had told him that she is too afraid to come to Barwon. He described a 'Gold, Silver, Bronze' system at Grevillea, with children on 'Gold' able to stay out of their cells until around 8pm, and children on silver and bronze locked down at either 4 or 5 pm.

382 The children are on rotation within the unit in three groups, and a few times a day when coming in from the exercise yard are required to walk handcuffed through the adult prison. On 9 March 2017 he heard adult voices when getting out of the van back from a Group Conference at Parkville. At Barwon he has heard dogs barking most days, either from the exercise yard or from his cell.

383 He stated: 'I feel depressed since being at Barwon'; and 'I do not feel safe at all at Barwon. I hate everything about it. It feels like an adult jail'. He has since been transferred out of Grevillea.

384 Angus Loynes stated that Grevillea is too far for his family to visit him and he has not had a single visit. He has heard the voices of adult prisoners from within Grevillea on several occasions. He described the difference between the educational programs at Parkville, which 'felt like a real school, with real classrooms' and the education programs at Grevillea which are mainly in the common area where it is loud and hard to concentrate. On 27 March 2017, when he refused to return to his cell from the exercise yard, the ERG and CERT staff members restrained him and took him back to his cell by force.

385 Angus described the 'Gold, Silver, Bronze' system at Grevillea, with children on silver or bronze locked in their cells by 5 pm, and those on gold able to stay out of their cells until 8 pm. A few times a day he is handcuffed coming inside from the exercise yard because this involves walking through the adult prison.

386 He said: 'At Barwon Prison I feel like I'm in an adult prison.' He remembers visiting his father at Barwon Prison in the past and states that being in Grevillea makes him feel like he's already in the adult system. He has heard loud sirens go off twice for the whole of the prison. When that happens the children have to stay in their cells. He describes feeling nervous and worried about what is happening in the adult prison. He has since been transferred out of Grevillea.

387 Damien Keryk stated that: 'At Barwon, I know I'm in an adult prison.' He was transferred to Malmsbury the day after affirming his affidavit.

388 Gabi Alleyne is the mother of a sixteen year old boy who was, as at 10 March 2017, detained at Grevillea. She deposed to visiting him there on three occasions between 7 December 2016 and 25 February 2017. On 17 December 2016 a planned visit was cancelled when she was informed that the adult prison and Grevillea had been locked down. Barwon Prison appears completely different to Parkville, where she has previously visited her son. The visitor centre at Grevillea is a small demountable building, similar to a portable classroom, with barbed wire visible from the windows. She does not feel comfortable bringing her other young children to visit their older brother there.

389 Ms Liana Buchanan is the Principal Commissioner for Children and Young People in Victoria, an independent statutory body established to promote improvement in services to children through monitoring, oversight and advice to government and agencies. Since it was first gazetted a youth justice centre, Ms Buchanan has personally visited Grevillea on four occasions, being 23 November, 8 December 2016, in early January 2017 and on 29 March 2017. She is also informed by other commission staff and community volunteers who have attended Grevillea of their observations.

390 Ms Buchanan explained that since the Commission has been monitoring Grevillea, it has been her practice to notify the Minister by letter when she or other commission staff have significant concerns about observed conditions. On 1 December 2016, Ms Buchanan wrote to the Minister raising concerns about the role of the SESG within the unit, which at that stage was being negotiated. Her central concern was that the facility be staffed with trained youth justice staff. She stated that the same principles and concerns applied to the presence of ERG staff in the unit.

391 On 9 January 2017, following her visit on 8 January, Ms Buchanan wrote to the Minister highlighting areas of concern that included the small amount of time out of cell for each child, and issues of mental health and wellbeing. With regard to time out of cell, she raised concerns about what appeared to be a standard practice at that time to isolate children in their cells for 23 hours per day whenever a child was on a 'separation plan' suggesting they had been involved in some incident. She noted that the confined space resulting from the physical infrastructure at Grevillea meant that opportunities to separate children from one another were very limited, resulting in a requirement that those on plans be locked down for greater periods of time. A standard approach in such cases was inappropriate in her view, as separation plans should be tailored to the individual child in question in order to address their particular behaviours.

392 Ms Buchanan also raised concerns that the very nature of the physical environment at Grevillea, not being designed or built to accommodate children, might be detrimental for some children. She requested that each child received an initial clinical assessment and ongoing regular assessments to identify any adverse reaction. Her view was that best practice required that the design of juvenile justice facilities provide an environment consistent with the rehabilitative purpose, whilst acknowledging that security was a very important consideration. She expressed concerns with the confined nature of the space, stating:

This was based in part on some interactions that I had had with children who had described to me that they felt more anxious at Grevillea, that they felt scared. They felt that because, if children and young people were out of their cells, everyone was in the quite enclose common area together. It was noisy, it was crowded and as one child said to me, "It feels like if something happens, if something kicks off ... then you're in it, there's no getting away from it".

393 On 2 February 2017, Ms Buchanan wrote to the Minister raising an issue that, from 29 January, OC spray had been authorised for use by ERG personnel within Grevillea. Returning to issues raised on 2 December 2016, she expressed concern about changes to the staffing arrangements that would more readily allow SESG access to Grevillea in urgent situations and allow ERG to be present on the floor as part of the ordinary staffing component within Grevillea on a day-to-day basis. She considered these staffing arrangements to be inconsistent with her ideal for a youth justice centre. In that letter she also raised concerns prompted by commission staff who had seen a number of children on plans that saw them in cell for 23 hours per day and being handcuffed for their single hour out of cell. Children had been seen handcuffed while eating their lunch in the common area. She was concerned that a standard lock down practice was being applied to those children.

394 Ms Buchanan also raised concerns regarding the lack of access to fresh air for some of the children for periods up to two weeks due to staff shortages meaning that there had not been any capability to safely escort children to the exercise yard through the adult prison.

395 Ms Buchanan explained that as part of a broader enquiry into isolation within the Victorian youth justice system, culminating in the Commission's report 'The Same Four Walls', published and tabled in parliament in March 2017, her office requested additional data for the first two weeks of December 2016 as to the number of isolations and the extent of separation plans and lockdowns at Grevillea, Parkville and Malmsbury. When comparing the data regarding the number of isolations imposed in Grevillea in that two week period (32 recorded instances), a discrepancy became apparent with the separate information that the Department had earlier provided to the Commission in response to Ms Buchanan's separate request (14 recorded instances).

396 Cross-examined, Ms Buchanan acknowledged that poor record keeping about instances of isolation had been identified as a problem at all Victorian youth justice centres, not just Grevillea. She agreed that the number of boys at Grevillea was presently lower than it had been in January and that this, in combination with some changes in approach by staff, seemed to have resulted in fewer children being on plans and a significant improvement in time out of cell for most boys.

397 Ms Buchanan agreed that staff shortages had not been a feature of the management in the unit in March 2017. She has been advised that the standard practice of applying a 23 hour lock down to those children on a separation plan had ceased, with 'individual behaviour management plans' replacing separation plans. She agreed that, while not an ideal in terms of environment, education was able to be provided at Grevillea, with teachers from Parkville College typically working with groups of children for five hours a day. Her most recent observations of the interactions between ERG staff and the boys were 'mixed', with some playing sport with the children and others standing together in the unit.

398 Ms Buchanan agreed that there had been improvements in several aspects since her correspondence with the Minister in December 2016, January and February 2017. Specifically, she agreed that the following of her concerns had been addressed at least in part:

(a) The ordinary time out of cell on most days had increased to 11 hours, being the standard expected at Malmsbury and Parkville, leading her to 'cautiously say that it is possible to manage boys without extended periods of isolation, despite the infrastructure', conditional on the numbers of children in the Unit remaining low.

(b) Separation plans had not been used at Grevillea in March 2017, with individual behaviour management plans in their place. Cuffing of children outside of their cells had not been a feature of any plan that she had seen in the past month.

(c) The approach of linking time out of cell to 'Gold/Silver/Bronze' status seemed to have changed. Those children on gold and silver were locked down at 8 pm, with the children on bronze receiving around one hour less out of cell.

(d) While there were challenges posed by the infrastructure and lack of private space, children were able to receive mental health services in the Unit, with steps taken in late February and early March for each child detained at that time to undergo a mental health assessment by the psychiatric team from the Alfred Hospital. She remained concerned that the assessments had only managed to capture those children who were present at the time agreed and were not ongoing.

(e) Concerns about food and the information provided to young people transferred to Grevillea remained, but she agreed that these were not necessarily a consequence of the physical infrastructure Grevillea.

399 The plaintiffs relied on two expert reports provided by Dr Adam Deacon, a consultant psychiatrist. Dr Deacon is a certified child and adolescent psychiatrist. As a consultant psychiatrist employed by Forensicare from 2005 to 2010, he was the visiting psychiatrist at Barwon Prison. He provided occasional further cover at the prison between 2010 and 2016, resuming monthly visits in late 2016. During his extended time visiting Barwon Prison he had previously frequently attended Grevillea when it held adult prisoners.

400 His first report, dated 10 March 2017, was based on his recollection of Grevillea prior to its gazettal as a YJC or remand centre for children. He subsequently visited Grevillea on 24 March 2017 and provided a supplementary report on 27 March 2017. Dr Deacon was cross-examined on his reports.

401 It is convenient to commence with some issues that arose on cross-examination. In about late November 2016, Dr Deacon declined a request made by the Chief Psychiatrist, Dr Neil Coventry to provide consulting services at Grevillea, because of other work commitments. However, he accepted the cross examiner's suggestion that, believing Grevillea to be unsuitable for the detention of children, he did not feel comfortable providing that service. Dr Deacon had these concerns when asked to provide an expert opinion in late February 2017 and may have expressed them to Ms Leikin. I am satisfied that Dr Deacon was of the view that Grevillea was an unsuitable place for the detention of children before he was asked to provide a report, this being a matter on which he had already reflected.

402 I was not persuaded by Dr Deacon's assertion that he had no preconceived view about how Grevillea would function as a youth justice centre. Holding a preliminary view about the subject matter of a report is not inappropriate but, that being so, it was desirable that Dr Deacon carefully explain how his opinions were conclusions that were properly reasoned by the application of his specialist expertise to relevant assumed facts, instructions, personal inquiries and observations that he identified and which had been established at trial by evidence.

403 Dr Deacon acknowledged that the source material for his reports was correctly described in those reports and that he did not receive any other instructions or material from Ms Leikin. The cross examiner subsequently established the falsity of that statement and Dr Deacon accepted that a source of information for some, perhaps relatively minor, sections of his reports where his observations are recorded was Ms Leikin, who had encouraged him to give more thought to some particular observations and to consider whether certain observations could be deleted. Ms Leikin was not cross-examined about her conversations with Dr Deacon.

404 I was not persuaded that he did not accept Ms Leikin's invitation to delete certain observations from his reports that cast a more favourable light on some of the operations at Grevillea. That said, I accept that his reports express his opinions. Dr Deacon accepted that his conversations with Ms Leikin contributed to the content of his reports, influencing the final product. He also agreed that his second report did not reveal, as it perhaps should have, that its content was influenced by a conversation with his instructing solicitor. There is no doubt that that conversation ought to have been stated as a matter on which his opinion was based, as clause 3 of the Expert Witness Code of Conduct requires. It is regrettable that Ms Leikin, who ought to well understand the requirements of the Expert Witness Code, did not ensure, when participating in a process of settling the content of the expert reports, the Dr Deacon fully complied with the Code.

405 The third matter that emerged in cross-examination was that Dr Deacon expressed opinions that were not properly reasoned from his expertise. This was most evident in his observations about the provision of education programs and his opinions about the architectural design and functionality of Grevillea. In other respects, his opinions appear to be based on observations about the built environment when they concerned matters that must necessarily be affected by the availability and manner of delivery of services within that environment. Although provided with a number of the affidavits tended by the plaintiffs, Dr Deacon had very limited instructions from which to opine about the matter of delivery of services. He was not provided with the affidavits on which the defendants relied and expressed no qualification in his reports that his opinion was limited by incomplete information about the staffing and services offered within the facility.

406 The consequence led to unhelpful speculation. For example;

If relations between Corrections Victoria staff, youth justice staff and the children are disrespectful and hostile, then it will persistently undermine any capacity and desire for engagement in therapy and programs that could offer a process of rehabilitation.

The opinion might be valid, but the premise was not established.

407 For these reasons, I have approached Dr Deacon's evidence with some reservations and considerable care. Much of his evidence is properly admissible opinion, albeit strongly expressed from a preconceived position, but that fact, of itself, does not require that I give no weight to his views. In what follows I have summarised those parts of Dr Deacon's opinion that I find probative on the questions before the court. I do not accept those parts of his evidence that I have not referred to.

408 Dr Deacon described the developmental needs of children aged 15 to 18 years, directing that discussion to the concept of development as defined in the CYF Act. In his opinion, the environment of the service/institution accommodating children needs to be specifically tailored to those developmental needs, in the context of children with significant and/or serious criminal histories. Such histories generally indicate adverse and dramatic backgrounds and a trauma-informed care approach with such children is necessary in the education and training of youth justice staff. In addition, the capacity to cooperate with experienced forensically trained medical and allied professionals is essential. Dr Deacon did not advert to any distinction between the needs of the sentenced cohort and the remand cohort. His observations, particularly his emphasis on rehabilitation, suggest that his opinions are primarily concerned with the needs of the sentenced cohort, although I do not regard his emphasis on the need to a trauma-informed care approach to be limited in that respect.

409 I pause to note that there were no issues in this proceeding that were affected by the conceptual approach taken by youth justice staff to their task or the nature of their training and education. Relevantly, Dr Deacon suggested:

The physical structure, appearance and ambience of the building needs to be able to provide adequate stimulation and space, and be equipped with appropriate facilities, to accommodate the child's education, family, there appear to care and physical activity needs. Children need to be actively engaged in a comprehensive program that keeps the child occupied and stimulated, whilst being treated respectfully by all staff, including youth justice and health.

410 Dr Deacon has no confidence that Grevillea has the capacity to cater for the developmental needs of children aged 15 to 18. He described Grevillea as one of the most austere units in the adult prison system, that had been designed and utilised to manage many of the most challenging adult prisoners. It is a demoralising and dehumanising environment, mentally taxing even for the most robust and resilient adult prisoners. Children would inevitably experience the unit as traumatising, being unduly restrictive, onerous, dehumanising and unstimulating.

412 First, the built environment was characterised by a lack of appropriate rooms and space for a school to operate, the modestly sized exercise yard contained within high walls resulting in a lack of sense of space and the lack of natural light and fresh air in the interior unit. Dr Deacon described Grevillea as an adult prison unit; not a youth justice facility. On inspection, he found it fundamentally unaltered compared with when it was previously used to accommodate high security adult prisoners. In his opinion, a youth justice facility needs to be considerably different in location, structure, ambience, facilities, staff composition and health service staffing and availability. A youth justice facility should provide an environment that is dignified and appropriate for children, even where security and restriction are needed. It is not possible for children within the Grevillea Unit to convince themselves that they are not in an adult prison. It is not possible to operate with trauma-informed care whilst the children are housed in a setting that is dehumanising and re-traumatising. The facilities for medical and therapeutic consultation were completely inadequate.

413 Secondly, Dr Deacon considered that at Grevillea a child's emotional needs could not be met. With a markedly reduced ability for children to socially mix with their peers, and instead limited to infrequent communication with youth justice staff, their social needs could not be met. Dr Deacon was particularly concerned that children were being contained within their cells for sustained periods of up to twenty-three hours per day. He stated that:

...it can be reasonably anticipated that children are at considerable risk of developing mental health problems, or coarsen (sic) pre-existing mental health problems. Scientific studies have consistently shown that children in youth justice settings have a markedly greater prevalence of pre-existing mental health problems. They are also more likely to be intellectually low functioning or intellectually impaired. It has also been shown that prolonged periods of solitary confinement markedly increases the risk of restlessness and agitation; concentration and memory impairment; apathy, dysphoria and social withdrawal; irritability, frustration and anger; mood disturbance, generalised anxiety and panic attacks; and irrational suspicion and paranoia.

...

Children spending extensive periods in seclusion are at marked risk of developing profound psychological damage. Even a few days of solitary confinement can lead to a state of emerging stupor and delirium. Solitary confinement can challenge and fracture even the most robust adult prisoner; it can shatter a young person lacking psychological resilience.

414 Thirdly, in an uncaring environment, children will potentially feel unsafe, unprotected, neglected, demoralised and unstimulated which will lead to a decline in the children's welfare. The children are at risk of experiencing marked mental decline that cannot be assisted by mental health clinicians. Unless the children are moved from the environment it is likely that their mental health problems will become more serious. More specifically, some, but not all, children may be at risk of engaging in self-harm and suicide attempts, and, over time, be at greater risk of developing mental problems, including depression, anxiety conditions, cognitive problems and paranoia.

415 Fourthly, on the basis of general observation and over a decade of experience in prisons and youth justice settings, rather than observations specific to individuals, Dr Deacon stated that these risks can be directly related to the prison environment. Children are at risk of developing problems with their self-concept and self-worth and at Grevillea the risk that children may incorporate the prisoner stereotype in their concept of self-worth is present. Children contained for sustained periods in such an austere setting as an adult prison unit, albeit repurposed, could potentially accommodate the environment through a process of 'learned helplessness'. Whilst superficially these children may appear to be adjusting and coping, it could be a manifestation of giving up and avoidance to the detriment of their developmental needs being unmet. If such a process occurs, it can still be at the expense of their mental wellbeing, as learned helplessness can predispose to depression and other mental health problems. In the longer term, the capacity for rehabilitation is jeopardised.

416 Fifthly, because Grevillea is unsuited to nurturing the developmental needs of children it is not a suitable place for rehabilitation of children. It should be anticipated the welfare of children detained there will deteriorate, with the potential that they will leave Grevillea with an increased risk of recidivism. The risk that children will become more disillusioned, demoralised, angry, and aggressive because they are accommodated in such austere and unsuitable conditions is high and the environment presents as a destructive influence on the mental health status of children accommodated there.

417 On Thursday 6 April 2017, I visited Barwon Prison and inspected the Grevillea Unit. Section 54 of the Evidence Act 2008 permits me to draw any reasonable inference from what I saw, heard, or otherwise noticed during that view. I observed that the fence that would relieve the need to handcuff children between Wing A and the exercise yard was not yet completed.

418 Video footage of an incident in Wing B on 13 February 2017 from three different angles was produced. There was no audio.[210] In the videos it can be seen that approximately 10 to 12 detainees and about six youth justice workers are present in the common area of the wing. There is activity around a table near the control room and the stairs to the upper level. A detainee standing behind two seated detainees picks up a plastic chair and throws it to a male staff member dressed in brown who is coming down the stairs. The chair travels over the head of a youth justice worker, who are identifiable by their blue tee-shirts, standing at the bottom of the stairs. The man in brown catches the chair in his left hand. Neither the man in brown nor the youth justice worker appear concerned and the man continues down the stairs carrying the chair. The detainee picks up and throws a second chair to the man in brown who catches it in his right hand and continues down the stairs.

419 During these activities, other detainees have stood up from the activity table or moved towards the activity table from other parts of the common area. ERG officers have begun entering the common area from the control room moving to their left behind a group of three detainees, including the one who threw the chairs. Three youth justice workers move quickly in between the detainees and the ERG officers. They appear to be attempting to settle the situation, which does not seem to be particularly volatile. However, the absence of audio precludes a proper assessment.

420 At least three ERG officers can be seen with their hands on their OC canisters ready to draw them as the youth justice workers grapple with the detainees. A detainee is then seen to kick an ERG officer in the leg. The only reaction to that kick that is apparent is that an ERG officer draws his OC spray canister and sprays it in the direction of the huddle of detainees and youth justice workers in front of him. Almost immediately after that occurs, another detainee who has come up to the other side of the activity table from the opposite end of the unit, near the ping-pong table, picks up another plastic chair and throws it across the room above the table and all of the persons I have been describing. It bounces off the wall down into those persons who are commencing to move, in response to the spray, towards the centre of the common area away from the control room.

421 The same officer can then be seen discharging the OC spray more extensively in the direction of a group of detainees in the middle of the space. Persons generally now appear affected by the spray and are starting to move towards the camera away from the control room in the direction of the exit to the exercise yard. The officer who deployed the spray has moved around the activity table in the direction of the control room when a detainee comes toward him. When they are in the vicinity of the staircase, the officer, from a range of about arms-length discharges OC spray again into a detainee's face, the boy who last threw a chair over the group.

422 From that time, it is clear that the incident has been fully deescalated. The detainees and youth justice staff move out into the exercise yard while the ERG officers return to the control room. Video from the security camera in the exercise yard shows the detainees and youth justice staff moving around. Mostly, they all appear to be affected by the spray but significant distress is not apparent. The videos demonstrate that youth justice staff appear to assist affected detainees. They also demonstrate that although no more than four or five of the detainees actively participated in the incident, all detainees and many youth justice staff were affected by the discharge of the OC spray by one ERG officer. The videos end before it can be seen what happens to all of the boys, however there appears to be at least one who is lying on the floor on the second storey balcony inside the unit. A youth justice worker appears to approach him.

423 I reject the plaintiffs' preliminary submission that in the present circumstances human rights are not subject to any demonstrably justifiable limitation because there cannot be any limitation under law for want of compliance with the provisions of the CYF Act. The plaintiffs submitted that the limitations on the engaged human rights affected by the Grevillea Orders put the Secretary in breach of her duties under the CYF Act to ensure that the entitlements of children in custody under the Act were met. The plaintiffs' only challenge to the lawfulness of that conduct/those decisions was jurisdictional error for want of jurisdictional fact, which I have rejected. The question of the lawfulness of the Secretary's conduct/decision relating to the Grevillea Orders did not arise. The decision to establish Grevillea was made 'under law' by an exercise of the Governor in Council's power under s 478 of the CYF Act.

424 However, I accept the plaintiffs' submission that Grevillea is a maximum security adult prison unit. Dr Deacon described the negative impact of this environment on young people detained within it as demoralising and dehumanising. Put simply, combined effects of the extensive use of isolation, the handcuffing, the requirement to take children through the adult prison to get outdoors, the physical high security prison environment, its lack of natural light and fresh air, the noise, the visible presence of prison officers, the lack of privacy, education, stimulation, time out of doors, confined outdoor space, in combination with the youth of the detainees, meant that their detention in Grevillea has limited their Charter rights.

425 For these reasons, issue 3 is answered in the affirmative, but only to the extent that it refers to rights under ss 17, and 22(1) of the Charter.

426 I am also satisfied, for the same reasons, that the decision to transfer the two plaintiffs, Marco Gillespie-Jones and Andrew Pound, to Grevillea limited their rights under s 17 and under s 22(1). Accordingly issue 10 is resolved in the affirmative in respect of the rights under ss 17 and 22(1).

(a) Grevillea was a place in which it was not possible to proportionately or humanely use OC spray (by contrast with OC foam) against children because its use was necessarily indiscriminately victimising. Put another way, there was no means of safely deploying OC spray within the confines of Grevillea such that those who were not the intended target of the OC spray use would not be affected by it. There was inadequate ventilation and no air conditioning by which to clear the air of the Unit from the effects of OC spray. It follows that any use of the spray in the Unit was likely to cause disproportionate suffering to all children detained in Grevillea because of its indiscriminate effect in that environment.

(b) The s 10(b) right must be given special consideration when undertaking the proportionality assessment under s 7(2) of the Charter, as under international law it is part of an absolute right that cannot be derogated from (even in time of war or other public emergency).[211]

(c) It is relevant to the proportionality assessment under s 7(2) of the Weapons Exemption that it was already determined that OC spray was to be used in situations far short of emergency or serious security threats. The defendants' evidence is that the SESG (who are authorised by the weapons exemption to use OC spray in the Unit) may be called in when there is an incident that 'threatens the good order of the Unit' and DHHS considers that the incident poses a 'serious threat to the good order of the Unit'.[212] The basis upon which assistance from the SESG was to be requested by DHHS staff was already in place prior to the weapons exemption.[213] The capacity for ERG staff, who are present in Grevillea on a day to day basis, to deploy OC Spray would occur in circumstances falling short of the level of emergency which might require SESG involvement.

(d) In any event, the use of any of the weapons would cause significant physical discomfort. Allowing the use of these weapons for mere 'threats to the good order of the Unit' is disproportionate given the level of discomfort caused to the children detained there. Ensuring that there is good order at Grevillea is not a purpose that is sufficient to provide a reasonable basis for limiting the rights in ss 10(b), 17(2) or 22(1) of the Charter.

428 The defendants contended that the Weapons Exemption could not limit the rights in ss 10(b), 17(2) and 22(1) in the abstract. I have already dealt with this contention.

429 The defendants contended that, if engaged, the right in s 10(b) was not limited, because of the terms on which the Weapons Exemption was made. In particular, the following safeguards were emphasised:

(a) The limited circumstances (and the nature of those circumstances) in which the SESG may be deployed, and the ERG may respond, under the Operation Order;

(b) The constraints on the use of force and the other considerations that arise from the application of the CYF Act;

(c) The operation of the conditions that attached to the proposed exemption;

(d) The scope and limits on the authority of SESG and ERG members that arises from the application of the Operation Order;

(e) The limits on the use of force, and the requirements relating to the response to the use of force, that arise as a result of the application of the Commissioner's Requirements (in addition to those that would arise under the Operation Order), particularly in relation to the use of OC spray;

(f) The specialist training and experience, including specialised communications and negotiation skills, that SESG and ERG members have as a result of completing the training requirements under the applicable Commissioner's Requirements; and

(g) The particular direction given to SESG members in the Operation Order about the additional considerations, informed by the Charter, that they must take into account because the detainees are children, and the additional instruction they have been given based upon the Information Sheets in relation to youth detainees which reiterates many of the above matters (including the status of the detainees as remandees).

430 Given this context, it was apparent that the use of force (including the use of OC spray and extendable batons) would only occur as a proportionate response to the safety threat posed by a person, having regard to their particular circumstances including their age, and cannot be used for the infliction of bodily injury or intense physical or mental suffering.

431 For these reasons, I am satisfied by the defendants that the prospect of a limitation on the right under s 10(b) in the circumstances of deployment of OC spray at Grevillea was not made out.

432 Further, the defendants submitted that the use of extendable batons and OC spray in youth justice facilities (including also at Parkville and Malmsbury) was assessed by DHHS and Corrections Victoria as an appropriate option to reduce injury and other threats to the safety of persons at Grevillea, both detainees and staff. Mr Howard's evidence was that these weapons assist in creating distance during a critical incident and OC spray in particular allows staff to bring an incident under control with the least amount of physical force and resulting injuries. In a volatile custodial environment in which young people are at risk of being injured by other young people with whom they are detained, it is in the best interests of all detainees that those responsible for the safety and security of the facility have the means of bringing an incident under control with the minimum use of force. The constraints and safeguards that apply to the use of extendable batons and OC spray are consistent with their use in the best interests of young detainees, in accordance with s 17(2), and with their humane treatment while in detention, as required by s 22(1).

433 I consider, consistently with the plaintiffs contentions, that the Weapons Exemption limited the rights expressed in ss 17(2) and 22(1) of the Charter, the scope of which has already been discussed, because it had the inevitable result that OC spray was able to be used against children in Grevillea, with particular consequences. While there is much force in the defendants contentions, those arguments are properly considered in the context of proportionality, not limitation.

434 Issue 14 is 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 is answered in the negative.

435 My findings require consideration of the next issue, that is, whether the limits placed on the engaged rights by the acts and decisions in question are under law reasonable and demonstrably justified, having regard to the matters set out in s 7(2) of the Charter.

436 The defendants submitted that, if I was persuaded that the establishment of Grevillea did, of itself, affect and limit the human rights of any of the plaintiffs, the decision of the Minister to recommend that the Governor in Council make the Grevillea Orders were not acts that were incompatible with human rights because any limitation was reasonable and demonstrably justifiable in the circumstances.

437 In the context of the Grevillea Orders and the Transfer Decisions the relevant rights under consideration are the s 22(1) right to humane treatment when deprived of liberty and the s 17(2) right of children to such protection as is in their best interests. The defendants acknowledged that each of these rights is important, particularly in the context of administering the CYF Act, but submitted that the rights in question are not absolute. The defendants developed this submission through an analysis of the application of s 7(2) of the Charter:

(a) The question of purpose was of primary importance. Grevillea was established to resolve over-crowding at Parkville and Malmsbury and provide adequate, safe and secure accommodation for all young people in the Secretary's custody, following extensive damage and the significant loss of accommodation resources at Parkville. To the extent that this decision limited human rights, the limitation serves an important purpose in the context of the defendants' (particularly the Secretary's) functions in administering the youth justice system. At the time it was made, many young detainees were being detained in Parkville and Malmsbury in inappropriate conditions, due to over-crowding issues.

(b) The defendants contended that three factors considerably lessened the extent of any limitation to human rights occasioned by the decision to establish Grevillea.

(i) The decision to establish Grevillea did not result in children being detained with or having contact with adult prisoners. Grevillea is contained within its own fenced and secure area and with its own separate recreational and visitor facilities, separated from the areas of Barwon Prison in which adult prisoners are detained.

(ii) While Grevillea was designed and established as an adult prison facility, its existing infrastructure was capable of being transformed into a suitable facility for young detainees. The defendants contended that it has been transformed into such a place.

(iii) Grevillea was established as a temporary secure accommodation measure, while the damaged units at the Parkville are repaired and other units are reinforced. Ms Peake gave evidence that it is likely that Grevillea will not be required beyond August or September this year. Further, because Grevillea is being used to house young people on remand, individual young people are detained there for, on average, only 38.8 days.[214]

(c) Any limitations on the rights of young detainees caused by the decision to establish Grevillea were clearly related to the purpose of establishing it.

(d) There were no less restrictive means reasonably available to achieve the purposes sought to be achieved by the limitations on human rights. The plaintiffs did not challenge the evidence that it was not possible to rely only upon Parkville and Malmsbury to accommodate all detained young persons in the system, each of which was already over-crowded, and that alternative facilities were considered by the defendants in November 2016 but were found not to be suitable.

438 Further, the defendants submitted that I should give a degree of latitude in respect of the decision to establish Grevillea, and should afford weight to the conclusions reached by the Secretary and DHHS, for the following reasons.

(a) The Secretary and DHHS are responsible for the statutory supervision of young people in the criminal justice system, including ensuring the safety and security of youth justice facilities and detainees.

(b) The Minister made her recommendation to re-establish Grevillea after giving careful consideration to the potential human rights impacts of the decision on which she was briefed by the Secretary.[215] It is telling that the plaintiffs do not contend that there was a failure to consider relevant rights in making the Grevillea Orders. In these circumstances, the Court can give considerable weight to the conclusion that any limitation of rights was justified.

(c) The decision was one taken in a correctional context, in which courts have been particularly reluctant to second-guess decisions made by an authority that is better placed than the court to assess and weigh-up operational issues.[216]

439 For these reasons, the defendants contended that, the court should find that any limitations on the plaintiffs rights were reasonable and demonstrably justifiable in terms of s 7(2) of the Charter. Accordingly, the decision was not incompatible with the plaintiffs' human rights, or human rights in the abstract, and does not breach the substantive limb of s 38(1) of the Charter.

440 Although ten plaintiffs were detained at Grevillea as at 8 February 2017, the plaintiffs' challenge to the Transfer Decisions was, as I have noted, limited to the transfers of the two plaintiffs who remained there as at the date of the trial - Marco Gillespie-Jones and Andrew Pound.

441 As I have noted, the ss 17(2) and 22(1) rights were engaged in the Transfer Decisions and that was confirmed by the inclusion of those rights in the check-list used by the decision maker when operational staff are contemplating a transfer of a child to Grevillea from Malmsbury or Parkville.

442 The plaintiffs submitted that it is for the defendants to satisfy the Court that any limits on these rights were 'under law'. The exercise of the Secretary's power to transfer under s 484 of the Act must conform to legislative safeguards or requirements of the law relied upon, in order for it to be lawful. The requirement imposed by s 482(3) on the Secretary to ensure that the entitlements in s 482(2) are met is one such safeguard. Allowing the transfers of Marco and Andrew breached the Secretary's obligation under s 482(3) because the s 482(2) entitlements could not be met in Grevillea. That exercise of the transfer power in s 484 is unlawful and the limits on Marco and Andrew's rights were not 'under law'. The limit cannot satisfy the requirements of s 7(2) of the Charter regardless of the factors going to proportionality because it fails at the first hurdle. Accordingly, limits on human rights cannot be justified with respect to that decision and are 'incompatible with a human right' under s 38(1) of the Charter.

443 I reject that submission in the context of the Transfer Decisions for the same reasons that I have already rejected the like submission in respect of the Grevillea Orders. As the defendants contended, when making the Transfer Decisions, the Secretary acted under the power in s 484 of the CYF Act and gave proper consideration to the relevant rights of each plaintiff under the CYF Act. Any limit on human rights is, accordingly, 'under law' for the purposes of s 7(2) of the Charter. The questions of the extent of limitation and proportionality must be considered accordingly.

444 The defendants further contended that, in any case, the Transfer Decisions did not limit the s 22(1) right to humane treatment when deprived of liberty. The transfer of the plaintiffs to Grevillea did not demean or degrade them, nor did it impose any hardship or constraint on them beyond that which results from their detention on remand in accordance with the CYF Act. The plaintiffs retained the entitlements and protections given by ss 482, 487 and 488 of the CYF Act, and by the Charter, in relation to the conditions of their detention and treatment while detained at Grevillea.

445 In the alternative, the defendants submitted that, in each case, the Transfer Decision was compatible with the engaged human rights, on the basis that, even if the decisions did limit such rights, those limits were reasonable and demonstrably justified in a free and democratic society.

446 Next, looking at the s 7(2) factors under the Charter, the defendants' developed that submission in respect of the Transfer Decisions on substantially the same basis as their submission in respect of the Grevillea Orders.

(a) To the extent that a Transfer Decision limited one or more of a plaintiff's human rights, the power to transfer serves an important purpose in the administration of the youth justice system. Due to the emergency situation following the extensive damage at Parkville, many young detainees at Parkville and Malmsbury were detained in overcrowded and unsafe conditions.

(b) Once Grevillea was established as a remand centre and YJC, the Secretary could remove young detainees from conditions of over-crowding at Parkville and Malmsbury, to ensure that they, and those that remained, were accommodated safely and securely in an environment with adequate facilities and resources. The Transfer Decision were made in the context of ensuring the continuation of the lawful detention of young people in the Secretary's custody. The Transfer Decisions were taken to address the risk of infringement of all detainees' Charter rights, including the right to security of the person and humane treatment when detained, posed by the overcrowded conditions at Parkville and Malmsbury.

(c) The resources and programs at Grevillea were designed to ensure that any hardship or limit on Charter rights was no greater than that which results from the lawful deprivation of liberty. Programs and facilities have been put in place to promote the safety, rehabilitation and development of detainees at Grevillea, as described by Robert Pemberton.

(d) Further, each of the plaintiffs remaining at Grevillea is on remand, and will only remain there until bailed or sentenced. The average duration of remand at Grevillea is 38.8 days.

(e) Any limitation to the rights of either plaintiff, caused by the decision to transfer him to Grevillea, is clearly related to the purpose of establishing Grevillea.

(f) There are no less restrictive means that are reasonably available to achieve the purposes sought to be achieved by the limitations. Alternative facilities were considered by the defendants in November 2016 but were deemed unsuitable. Both Parkville and Malmsbury were at or above capacity on 29 December 2016 and remain so, with some young people sleeping in holding cells and isolation rooms at night. Plainly, it was not possible for a new purpose-built remand centre or youth justice centre to be established in the time available to DHHS. What the plaintiffs contended for was, in essence, perfection in the management of the youth justice system. That is, the defendants submitted, unrealistic. Grevillea was the only feasible, temporary, option available to DHHS to provide safe and secure accommodation.

(g) Finally, for the reasons outlined above at paragraph 438, the court should give the defendants a significant degree of weight and latitude in respect of the Transfer Decisions, including in relation to justification. This is particularly so because each of the Transfer Decisions was made following a robust process that ensured that proper consideration was given to relevant human rights.

447 For these reasons, the defendants contended that, if the plaintiffs' rights were limited by the decision to transfer the plaintiffs to Grevillea, the court should find that the limitation was reasonable and demonstrably justifiable in terms of s 7(2) of the Charter. Accordingly, the Transfer Decisions were not incompatible with the plaintiffs' human rights.

448 For the reasons that I will shortly state, under the substantive limb of s 38(1) of the Charter, the Grevillea Orders are incompatible with the relevant human rights and the conclusion also follows that each transfer decision was not compatible with the s 17(2) and s 22(1) rights enjoyed by Marco Gillespie-Jones and Andrew Pound. Different circumstances applied to the procedural issues in respect of proper consideration of the engaged human rights of each boy and I will come to that process in due course.

449 I do not accept the defendants' contentions that the limits on human rights effected by the Grevillea Orders and Transfer Decisions were demonstrably justified as reasonable. Human rights were significantly affected and were limited by the decision to establish Grevillea, and by the subsequent decisions to move detainees there. The relevantly engaged rights that were limited in a way that was unreasonable and not demonstrably justified were the s 22(1) right to humane treatment when deprived of liberty and the s 17(2) right of children to such protection as is in their best interests.

450 Dealing first with the s 22(1) right, I have set out above my detailed findings of fact. Drawing from those findings, the principal limitations on this right were caused by:

(a) The need to modify or renovate Grevillea's built environment that was, and remains, immutably, that of a maximum security adult gaol.

(b) The extensive incidence of isolation by lockdown for substantial periods of the day, extending up to 23 hours, in cells designed for occupation by adult men. In addition, some children were handcuffed during their limited periods of release from cells. There were children who were effectively under either continuous isolation or restraint for multiple days at a time.

(c) The presence of security staff from the adult prison, mostly ERG but with the prospect of the SESG becoming involved, reinforced the negative impact of the built environment to emphasise to the children that they were incarcerated in the punitive sector of the adult jail system.

(d) There was uncertainty for children about the treatment that they would receive that was a consequence of the first three factors and was not alleviated by the use of a 'bronze/silver/gold' program which the evidence appears to show has changed over time.

451 Although circumstances had changed, much of what Garde J said when considering the use of Grevillea in Certain Children,[217] remains apposite. The manner in which these four matters limited the engaged rights of children at Grevillea is evident from the evidence of the individual plaintiffs, and their solicitor Ms Leikin, but particularly in the evidence of Ms Buchanan and Dr Deacon.

452 The evidence supports my conclusion that the developmental needs of detainees would not be met and that their physical, social, emotional, intellectual, cultural and spiritual needs would be significantly limited when Grevillea was re-gazetted as a YJC and youth remand centre to which children were then transferred.

453 The principal limitations on the s 17(2) right evident from my findings are:

(a) The limitations on the s 22(1) right already discussed are applicable, particularly because of the vulnerability of the child detainees.

(b) Disciplinary measures applied through the use of isolation by lockdown and handcuffing detrimentally affect the inherent dignity of children and the fundamental rehabilitative objectives of care in detention under the CYF Act. Such measures may compromise the physical or mental health or well-being of detainees.

(c) The detainees' right to maintain contact with their families was, in many cases, constrained by the remoteness of Grevillea and the visitor policies enforced in respect of visitors to Barwon Prison.

(d) The physical environment and accommodation is not in keeping with the rehabilitative aims of detention under the CYF Act, failing to give due regard to a child's needs for privacy, sensory stimuli, opportunities to associate with peers, and to participate in sports, physical exercise, arts and leisure time activities.

(e) Every child detained was not provided with education suited to his or her needs and abilities and designed to prepare him to return to society. Opportunities for vocational training in occupations likely to prepare children for future employment were virtually non-existent. This limitation was alleviated to some extent as time went by but the limitations of the built environment remain relevant.

(f) There was a risk through the inadequate built environment that every child would not receive adequate medical care during detention, particularly in relation to individual therapies and psychological treatments.

(g) The facilities for private professional visits, whether legal or therapeutic, were inadequate.

454 The defendants have not persuaded me that the limitations set out above were proportionate.

455 First, I remain unpersuaded that the defendants appreciate the true nature of the engaged rights. As Bell J suggested in Re Lifestyle Communities Ltd (No 3) (Anti-Discrimination),[218] what must be considered is the the quality of the right and the importance of the values that underpin it. The ss 17(2) and 22(1) rights engaged in this proceeding protect important values that I have already discussed, including the protection of bodily integrity, mental health, dignity and self-worth. The Charter makes clear that children are not to be treated like adults. Children in detention are particularly vulnerable by reason of their age and circumstances. The focus on a child's opportunity to continue to develop, particularly to adult maturity, is sharp and rightly so. It is fundamental that vulnerable children from disadvantaged circumstances be rigorously protected by the law in a free and democratic society based on human dignity, equality and freedom. Dr Deacon's evidence explained why that is so.

456 The evidence does not reveal that the defendants sought any specialist advice, whether externally from consultants or internally, to inform them of the complexities of the impact of Grevillea's built environment on matters such as mental health, dignity and self-worth, or in respect of the special vulnerabilities of the remand cohort in the Secretary's custody. These were the key respects in which limitations on the engaged human rights would operate.

457 Secondly, the purpose of the limitations are complex. I accept that the defendants presently face a real accommodation crisis in the youth justice system. Predominantly, the defendants contended that with regard to justification the greater good ought prevail, meaning that the benefit of s 17(2) and 22(1) rights are delivered to the greatest number of child detainees in youth justice, even if there are limitations on the rights of some child detainees on remand. That submission is attractive at a general level only. The greater good purpose accords with the Charter and is arguably a very significant purpose, but it is redolent of convenience for the public authority. It cannot be accepted at face value. The reasons for the accommodation crisis rather depend on whether the short view or the long view is taken of history and of the wisdom in past decisions affecting the allocation of resources within youth justice over the last decade. I cannot say more on the basis of the evidence before me, save that the events of November 2016 that are described in greater detail by Garde J and which precipitated the current accommodation shortage were obviously symptomatic not causal. The existence of a systemic crisis, in the absence of a proper explanation, must necessarily permit a reasonable inference of past policy failure in the allocation and management of resources within youth justice, probably in the longer term.

458 The greater good purpose may be an explanation offered by the defendants of a governmental resource allocation decision that is not susceptible to proper scrutiny. I cannot form a judgment about that, but I observe that its corollary is that it is better that a few should suffer limitations on their human rights because the human rights of all cannot be respected. I am not persuaded that the purpose of the limitations or its corollary is a matter deserving of significant weight.

459 At a more specific level, the greater good purpose is not the purpose of the limitations. The predominant purpose of the isolation/lockdown and handcuffing restraints was managerial, arising from the need to control the environment to ensure security and safety. I am satisfied that the need for renovation/modification of the built environment provided a dominant reason for lockdowns occurring and the extensive use of handcuffing. That purpose was first, to enable the completion of renovations by dealing with security needs, for Barwon Prison as well as Grevillea YJC, and secondly, to obviate the need to allocate proper resources to a rapid renovation to convert the unsuitable maximum security isolation unit at Barwon into a youth justice facility. I will later say more on this issue. However, a punitive purpose is also clear, and particularly noted by Ms Buchanan, in respect of the relationship between behavior management plans and isolation times.

460 Thirdly, the nature and extent of the limitations is very significant for those who must suffer them. So much is clear from the evidence, particularly that of Dr Deacon and Ms Buchanan, which provides independent support for the evidence of the plaintiffs and their solicitor.

461 The Charter Assessment in late December 2016 confirmed Ms Peake's evidence that detainees experienced long periods of lockdown and isolation in their cells because the appropriate facilities and services at Grevillea were still being put in place. In Certain Children, Garde J found that only Wing A of the Unit was available as Wing B was still being renovated. These constraints continued following his Honour's decision and I am satisfied that they were operable in one form or another until well into February 2016. Some constraints remained as a cause of limitations on rights at the time of the trial before me. An example was the non-completion of the fence between Grevillea and the sterile area of Barwon Prison linking the exercise yard to Wing A.

462 On the basis of Ms Buchanan's evidence I am satisfied that -

(a) On 8 January 2017, significant concerns existed (remained) about the time out of cell for each child, and related issues of mental health and wellbeing.

(i) With regard to time out of cell, the standard practice at that time appeared to be to isolate children in their cells for 23 hours per day whenever a child was on a 'separation plan'. The confined space resulting from the physical infrastructure at Grevillea meant that opportunities to separate children from one another were very limited.

(ii) The very nature of the physical environment at Grevillea that was not designed or built to accommodate children appeared to be detrimental for some children's mental health and wellbeing. She requested that each child receive an initial clinical assessment and ongoing regular assessments to identify any adverse reaction.

(b) On 2 February 2017 (after the relevant transfers), these concerns remained.

(i) Ms Buchanan raised children being placed in lockdown for 23 hours per day and being handcuffed for their single hour out of cell as continuing concerns. Children had been seen handcuffed while eating their lunch in the common area. She was concerned that a standard practice was being applied to those children on behaviour plans.

(ii) She expressed concern about changes to the staffing arrangements that would more readily allow SESG access to Grevillea in urgent situations and allow ERG to be present on the floor as part of the ordinary staffing component within Grevillea on a day-to-day basis. She considered these staffing arrangements to be inappropriate in a youth justice centre. Her most recent observations of the interactions between ERG staff and the boys were 'mixed'.

463 Dr Deacon identified significant risk that the capacity of Grevillea to deliver accommodation for remandees that provided treatment with humanity and with respect for inherent dignity and was substantially compromised. His key conclusions were:

(a) Grevillea lacks the capacity to cater for the developmental needs of children aged 15 to 18. From a psychiatric perspective, Grevillea is a demoralising and dehumanising environment for children, and would be mentally taxing even for the most robust and resilient adult prisoners. Children would inevitably experience the unit as traumatising, unduly restrictive, onerous, dehumanising and unstimulating.

(b) Children housed in Grevillea are at greater risk of developing mental health problems, directly relating to the environment including depression, anxiety conditions, cognitive problems and paranoia, or if they have existing mental health problems, they are at considerable risk of those problems being exacerbated by the environment.

(c) Grevillea does not and will not meet the emotional needs of children detained there.

(d) Children subjected to sustained periods of isolation in that environment are at risk of developing profound psychological damage.

(e) Children will potentially feel unsafe, unprotected, neglected, demoralised and unstimulated at Grevillea, which will lead to a decline in the children's welfare. The children are at risk of experiencing marked mental decline that cannot be assisted by mental health clinicians. Existing mental health problems may become more serious.

(f) Grevillea is unsuited to nurturing the developmental needs of children and is not a suitable place for rehabilitation of children. It should be anticipated the welfare of children will deteriorate with the potential that they will leave Grevillea with an increased risk of recidivism.

464 I am satisfied that the limitations identified are, by their nature, capable of impacting significantly on the plaintiffs. The plaintiffs, and all children detained in Grevillea, are subjected to hardships or constraints that are not simply the consequence of the order of the court that they be deprived of their liberty while awaiting trial or sentence. In most cases, the limitations are caused by the inappropriate features of the built environment in which they are held. The detainees are vulnerable, through age, circumstance and background and the treatment that they have received lacks the appropriate consideration of these special vulnerabilities and needs, particularly for the reasons identified by Dr Deacon.

465 The major qualification often accepted in cases of challenges to the features of incarceration is the need to ensure safe custody, the secure operation of the facility and a well-ordered community life within the facility. This case is different. The limitations on human rights that meet those needs are created by the unsuitability of the facility itself, particularly its built environment.

466 There was limited evidence of the circumstances in which individual behaviour management plans (IBMP) were utilised. Two plans were produced to the court, one involving the plaintiff Liam Arnell (who was detained at Grevillea on 17 January 2017, the date of his IBMP) and the other involving a detainee at Malmsbury. There were also a number of 'client profiles' in evidence that revealed detail of management concerns about behaviour for individual detainees. Review of these documents shows that control issues commonly resulted from want of segregation opportunities, which is a product of the unsuitability of the built environment both in terms of its designed layout and lack of fitness for purpose as a youth justice facility and in terms of the psychological impacts described by Dr Deacon.

467 The relationship between these limitations on the rights of the plaintiffs and the purpose for them confirms that the greater good justification is clearly of lesser relevance when compared with the purpose of limitations on rights to make the inappropriate built environment function, particularly in terms of safety and security, given its limitations and unsuitability for purpose.

468 It is significant that, with a longer operating time and careful attention from some of the DHHS staff, many of the worst features of Grevillea that were evident to Garde J, and remained as significant and dominant features of its operation through January and February 2017, had been ameliorated to some degree in March. Why that is so was explained by Robert Pemberton, who commenced in the role of acting general manager of Grevillea on 3 March 2017.

469 Mr Pemberton professes to actively instituting a therapeutic approach at Grevillea. The defendants have recognised that Grevillea operates most effectively when it is no more than half full. In January, there was a high of 28 detainees. As at 23 March 2017, there were 14 detainees. Building works were substantially completed. Arrangements for the delivery of education programs had significantly improved. The behaviour management strategies had ceased to focus on lockdowns and handcuffing. The period of time for children in lockdown had dramatically decreased. Mr Pemberton said there had been no handcuffing since he commenced save for the walk through the sterile area of Barwon Prison from the exercise yard to Wing A. In that respect, the fence that is intended to incorporate a secure walkway from the exercise yard had not been completed on 6 April 2017, when I inspected Grevillea.

470 Ms Buchanan also observed improvements in the circumstances of detainees from the commencement of Mr Pemberton's management, that are noted above at [398].

471 This evidence makes clear that there were less restrictive ways reasonably available at the time of the relevant decisions to achieve the purposes that the limitations sought to achieve. I infer also that other less restrictive means may have been available from the absence of positive evidence from the defendants. The defendants bear the onus, once prima facie incompatibility is established, to justify the limitations created by their actions or decisions. The standard of proof is high, requiring a degree of probability which is commensurate with the occasion, and must, by reason of the vulnerability of the plaintiffs, be strictly imposed.

472 The defendants' position was that Parkville and Malmsbury could not accommodate all detained young persons, as each was already over-crowded, and that alternative facilities considered by the defendants were deemed unsuitable. The basis for the submission that there were no less restrictive means available was largely based on the lack of challenge on that point by the plaintiffs. Nothing was said about the application of additional resources to existing problems. I am satisfied that the security needs associated with the construction work contributed to the incidence of lockdowns and handcuffing. Further, nothing was said, and there was no analysis in the relevant decision making paperwork of the prospect of alternative accommodation being rendered suitable by a like rapid, expedited renovation elsewhere. There was no evidence of financial constraint. The limitation that the plaintiffs have suffered on their human rights has been substantial. I am satisfied that the allocation of much greater financial resources was an option that was reasonably available to achieve the purposes of management of safety and security.

473 Another alternative might have been to apply additional resources to cut delay in bringing remandees to trial or sentence. There is no basis to assume that no measures could have been implemented and if appropriately resourced could have succeeded in cutting down the numbers of remandees and the average time in remand. The consequence would be that pressure on the youth justice system generally could have been eased.

474 The evidence does not support the proposition that the defendants thought extensively or creatively about solutions to the emergency crisis that was before them. A traditional, but limited, response emerged that imposed some significant limitations on the rights of a few. Broadly speaking, the resources available to government are a relevant factor when determining what reasonable limits on human rights can be justified.

475 In a free and democratic society based on human dignity, equality and freedom, the executive is expected to make a proper proportion of its resources available for the protection and advancement of its children. The defendants do not contend, appropriately, that the Victorian community lacks the resources that could be applied to advance less restrictive means of providing secure accommodation. By simply identifying four alternative places that are not suitable, the defendants fell well short in demonstrating that resources were inadequate for the provision of less restrictive measures.

476 For these reasons, I conclude that the limits on the human rights of the plaintiffs under s 22(1) and 17(2) that were imposed by the Grevillea Orders were not demonstrably justified in a substantive sense. In a free and democratic society based on human dignity equality and freedom, these limits were unreasonable.

477 The defendants' submissions in respect of substantive compatibility of the limits imposed by the Transfer Decisions with the engaged human rights fail for the same reasons and what I have already stated in respect of the Grevillea Orders applies, mutatis mutandis.

478 Accordingly, issues 4 and 11 are answered in the negative in favour of the plaintiffs.

479 The plaintiffs submitted that the Weapons Exemption could not survive a s 7(2) assessment for the reasons set out above commencing at [427] when considering the issue of limitation.

480 I concluded that there was force in the defendants contentions, set out above commencing at [429], in respect of limitation of rights in the context of proportionality. I need not repeat those submissions.

481 As a result of my earlier finding at [433], I am now only concerned to evaluate the proportionality of the limits on the rights under s 17(2) and 22(1).

482 The defendants further submitted that, even if the Weapons Exemption limited human rights, those limits were reasonable and justified in a free and democratic society, pursuant to s 7(2) of the Charter and developed that submission as follows:

(a) The Weapons Exemption was made under law by an exercise of the Governor in Council's power under s 8C of the CoW Act.

(b) Each of the rights in ss 17(2) and 22(1) is important, particularly in the context of the detention of children. However, none of the rights in question is absolute. Parliament has recognised that they may be limited.

(c) The purpose of any limitation in this case was clearly to ensure the security and good order of Grevillea, the safety and welfare of all young people detained there and the staff who work with them. Any limitation imposed by the Weapons Exemption on the rights of young detainees such as the plaintiffs has a clear relationship with that purpose.

(d) The Weapons Exemption is subject to conditions designed to ensure that any use of the weapons at Grevillea is reasonable and proportionate to the purpose. Mr Howard's evidence that, while the use of tear gas is authorised at Parkville and Malmsbury, it is not authorised at Grevillea is notable.

(e) Mr Howard's evidence that there are no less restrictive means that are reasonably available to achieve the purposes sought to be achieved by the limitations on human rights was unchallenged, other than questioning whether the use of OC foam, as opposed to spray, was an appropriate option. Realistically, the alternatives to the use of OC spray are either reliance on physical force alone to bring an incident under control, or allowing the incident to develop unchecked.

(f) As with the Grevillea Orders and the Transfer Decisions, the court should give the defendants a degree of latitude in respect of the Weapons Exemption. Careful consideration was given to human rights before advice was tendered to the Governor in Council, and the conclusion was reached that any limit on rights would be demonstrably justified under s 7(2). The Court should give due weight to that conclusion.

483 For these reasons, the defendants contended that the court should find that the limitation was reasonable and demonstrably justifiable in terms of s 7(2) of the Charter and accordingly, the Weapons Exemption was not incompatible with the plaintiffs' human rights, or with human rights in the abstract.

484 The practical operation of the Weapons Exemption was demonstrated by the videos in evidence of the incident on 13 February 2017 when OC spray was deployed inside Wing B. In addition, there was evidence from some plaintiffs about the same incident and the evidence of Mr Howard. I have carefully considered this evidence.

485 It is significant that the Weapons Exemption is conditional and I noted the conditions included within its gazettal above at [12]. In essence, the exemption only permits use of OC spray in Grevillea by officers engaged to ensure the security and good order of Grevillea and/or the safety and security of any detainee there, who must perform such duties in accordance with the CYF Act and any relevant Operation Order. Unless inconsistent with the CYF Act, the officers must observe all statutory and regulatory instructions governing the use of OC spray and must have successfully completed certain training requirements.

486 On their face, the conditions appear to provide significant protection. Having regard to the s 7(2) considerations, I accept the defendants' contention that the limits imposed on the relevant human rights by the Weapons Exemption were demonstrably justified as reasonable. Particularly influential in this conclusion is the proposition that more substantial limitations would be placed on these human rights if officers responsible for the security, good order and safety in a custodial setting were limited to responding to rapid escalations in confrontational physical behaviour involving groups of detainees by methods other that the use of OC spray. In a free and democratic society based on human dignity, equality and freedom, reasonable measures to quickly and effectively curtail violent confrontation in the manner that is least likely to inflict lasting or substantial transient physical injury on both participants and those seeking to restore order are expected.

487 In the absence of sound accompanying the video recordings, it was difficult to assess what actually occurred between detainees and ERG officers on 13 February, 2017. The circumstances that led to the rapid escalation of the incident were unclear and it is possible that DHHS officers were in control of the situation, at least sufficiently to effect an appropriate de-escalation of tensions of the unfolding events without the ERG officer having recourse to the use of OC Spray. Following the deployment of OC spray the incident ends as quickly as it began. An analysis of responsibility for that incident was not possible and, in any case, not to the point.

488 I am satisfied that, when all relevant factors are taken into account, the limits under law to which the rights of the plaintiffs under ss 17(2) and 22(1) of the Charter are subject by operation of the Weapons Exemption are demonstrably justified as reasonable. What remains to be assessed is the issue of proper consideration under the second limb of s 38(1).

489 As I have said, the plaintiffs invoked both the substantive and procedural limbs of s 38(1). I now turn to the question of whether, assuming limits were proportionate, on making the decisions did the public authority give proper consideration to each engaged right.

490 First, I am satisfied that the Minister seriously turned her mind to the possible limitations on human rights for potential detainees from the Grevillea Orders. So much is clear from the content of the ministerial brief. Secondly, I am satisfied that the Minister identified the correct rights.

491 The contentious area is whether the Minister correctly balanced the competing public and private interests. I bear in mind that I ought not undertake the review overzealously. As Emerton J stated in Castles:[219]

...it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified;

The circumstances here are exceptional, however, in that the Minister was guided by the Certain Children decision and the Charter compatibility was carried out by, or under the direction of, the VGSO. The standard of the decision makers' discharge of responsibility ought to be higher that what was expected of the Secretary in Castles.

492 In my view, without being overzealous, the Minister's balancing exercise with respect to the Grevillea Orders fell short of the statutory standard of giving 'proper consideration'. Starting with the s 22(1) right, the Charter Assessment identified, plainly by reference to Castles, that 'Detainees should not be subjected to hardship or constraint other than the hardship or constraint that results from the deprivation of liberty.' However, Castles concerned different circumstances. Here, the defining feature is that the detainees are children and that feature lacked the necessary emphasis. The concern that was identified was that 'When the Grevillea precinct was first established, detainees experienced long periods of lockdown and isolation in their cells because the facilities and services at the precinct were still being put in place.' The true consequences of such lockdowns was not considered, which meant that the effective limitation on the right was not addressed.

493 Further, the Minister was advised that extended periods of lockdown caused by building works and transitional arrangements at the Grevillea precinct were no longer expected, based on advice given by Marcel Scott Jacques, then head of Operations at Grevillea, that all of the construction work at Grevillea had now been completed and programs and services had been fully implemented. As a result, for all detainees who are not on a management plan, rooms were routinely unlocked at approximately 8.45am and locked again at 8pm, with a half hour lockdown period in the afternoon for a staff meeting. With the exception of a 30 minute staff meeting, detainees who are not in a IBMP enjoyed full access to the communal and outdoor areas. The assessment described the processes and procedures governing behaviour control or management but what is referred to as 'evidence given by' Mr Jacques about the building works is simply accepted. This phrase only makes sense as a reference to the affidavit prepared by Mr Jacques and his evidence at the trial in Certain Children.[220]

494 The Charter Assessment also noted that, for a like reason, handcuffing no longer occurred when detainees were transported to the outdoor area, because the renovations to Wing B were nearly completed and detainees could access the yard directly from Wing B. This appears to be the content of Mr Jacques evidence in Certain Children.[221]

495 Thus, the balancing decision that was made was that there was no longer any relevant limitation on the right in s 22(1) because the need for procedures that may have caused limitations in the past had resolved.

496 Mr Jacques did not give evidence before me and his absence was not explained. Given the critical role of his evidence on the Charter Assessment considered by the Minister, Mr Jacques was a witness who the defendants might reasonably have been expected to call to demonstrate the truth of the factual basis for the critical balancing of rights in respect of lockdown/isolation and handcuffing for the Charter compliance assessment considered by the Minister. The factual basis for this balancing was not established by other means which would have been available to the defendants. Further, as I have stated, what was established was that, contrary to the information relied on for the assessment, the building works were not completed until sometime in February and lockdowns for extended periods continued for at least a further 6 weeks.

497 Concerning handcuffing, the information sourced from Mr Jacques was also incorrect or misconceived. Detainees continued to be handcuffed for transportation to and from the exercise yard to Wing A on 6 April 2017 when I visited the Unit. Completion of renovation works in Wing B, whenever that occurred, did not permit access to the exercise yard from Wing A through Wing B because of the need for segregation of detainees.

498 The balancing decision was significantly impaired by these wrong factual assumptions. As a result, it was unreal. The process contained no procedure to avoid such error or otherwise achieve checks and balances that would ensure proper consideration was given.

499 There were other relevant documents. The Current Conditions Assessment prepared for the Ministerial brief by departmental officers, to which I have already referred, noted that 'significant improvements have been made to both the physical infrastructure and the provision of services at' Grevillea. That assessment is predicated on the Charter Assessment and thus based on Mr Jacques' evidence in Certain Children. Error was perpetuated, not discovered.

500 The reasons for judgment in Certain Children were also included in the brief prepared for the decision maker and it is apparent that Garde J's finding that works in Wing B were expected to be completed in the near future was based on counsel's submissions.[222] There was no evidence of an objective contemporaneous departmental assessment of the assumed facts.

501 As the flaw in the balancing assessment by the decision maker is that it is founded on wrong facts, it is necessary that I review the balance that was struck, and not limit my consideration to whether the balance falls within a range of rational or reasonable decisions and that I must do so objectively on the evidence presently before the court. I am not satisfied that the consideration that was given to the s 22(1) right can be described as proper for the foregoing reasons.

502 The considerations that were assessed in respect of the s 17(2) right were drawn from Garde J's reasons but the assessment fails to address the key aspect of Garde J's finding, set out above at [266]. In concluding in the context of the s 17(2) right that the Grevillea Orders had widespread ramifications for young persons who might be transferred there, Garde J stressed the importance of a sense of security, both physical and mental, as well as the importance of developmental needs. The impact of the restrictions on the s 17(2) right of the built environment within Grevillea and of its presently incomplete or unsuitable state was not considered.

503 The Ministerial brief gives no indication that it was informed by any psychological or psychiatric opinion. Despite calling psychiatric evidence, the cross-examiner did not take up this issue with Ms Peake, but on the other hand, the defendants, bearing a strict onus, failed to explain why opinion from someone appropriately qualified to assess the physical and mental well-being and developmental needs of children in the Secretary's care was not incorporated into the assessment. It is unsurprising if the unidentified author of the Charter Assessment might have thought him or herself unqualified for that aspect of the assessment. What is surprising is that the author did not advert to that key finding and acknowledge the appropriateness of expert opinion. Perhaps the answer lies in the qualification, optimistically noted in a footnote, that while Garde J had held that the s 478 decision did engage rights that aspect of the judgment was under appeal.

504 The Charter Assessment failed to take a relevant and critical consideration, being the potential for the built environment at Grevillea to negatively impact upon the mental health and wellbeing of children detained there, into account. That consideration was clearly identified as critical by the decision in Certain Children. Objectively examined on the evidence before me, which I have already considered in some detail, the balance that was struck between the s 17(2) right and the limitation and its purpose did not involve proper consideration as required by the procedural limb of s 38(1).

505 For these reasons, I will declare that the December Grevillea Orders were unlawful because the Governor in Council, on the advice of the first defendant and given on the basis of a recommendation of the second defendant, when making the Orders, acted in a way that was incompatible with the human rights set out in ss 17(2) and 22(1) of the Charter or, in making the decisions, failed to give proper consideration to those relevant human rights.

506 Turning to the second limb of s 38(1), in each case the decision-making documents and the decision makers evidence showed that they had not properly considered how the relevant rights would be interfered with by the decisions to transfer each of the plaintiffs known as Marco Gillespie-Jones and Andrew Pound to Grevillea.

507 The process for evaluation of the accommodation needs of the youth justice cohort was described by Tracey Beaton.[223] The Secretary's delegate, Jodi Henderson, described the decision-making process, and the considerations that were given to the human rights of each boy when the decision to transfer him was made on 1 February 2017.[224] The defendants submitted that the Transfer Decisions did not limit their human rights and, alternatively, that any limitation was reasonable and justifiable.

508 This submission was developed in a similar way as in respect of the Grevillea Orders:

(a) The decision to transfer each of the plaintiffs to Grevillea did not limit the plaintiffs' s 17(2) right to such protection as was in their best interests by virtue of being children. Grevillea was established out of necessity as earlier discussed. It was in the best interests of child detainees generally to be accommodated in an adequately resourced facility and not to be detained in over-crowded conditions. The defendants concluded that Grevillea was the only available facility that enabled youth clients to be separated from adults, had the required number of beds available, had a recreational space, program and education areas, as well as its own visitor centre, and had anti-ligature points that were compliant and safe.

(b) Individual transfer decisions were made following proper consideration of the particular needs and circumstances of each plaintiff, particularly having regard to the fact that transfer of young persons between different youth justice facilities can be disruptive and challenging. In circumstances where there were no other suitable alternatives, it was consistent with the best interests of these plaintiffs for them to be transferred to Grevillea because it could accommodate them safely and securely, bearing in mind that they are on remand for serious offences for which the Children's Court has refused bail.

509 The plaintiffs submitted that the Client Movement Panel Matrix indicated a misunderstanding of the nature and extent of the limitation of rights involved in transferring children to Grevillea. It did not grapple with the full extent of whether and how those rights would be interfered with.[225] The plaintiffs submitted that what the checklist disclosed was mere lip service to the Charter, to permit implementation of a pre-determined outcome, possibly because the defendants did not accept that many of the findings of Garde J in Certain Children applied to Grevillea as it was then operating. For example there is no consideration of the fact that:

(a) s 22(1) may be limited or breached where prolonged isolation by lockdown must be used both as a behaviour management tool and as a general tool for the maintenance of security and order in the Unit, or where handcuffing is routinely used because of the physical layout of Grevillea, or where children are subject to security control by ERG officers and threatened that they may be controlled by SESG officers because of the location of Grevillea within an adult prison;

(b) ss 17(2) and 22(1) may be limited or breached by the nature of the built environment and facilities available that were not suitable for children and that affected children's;

(i) sense of security, both physical and mental; and/or

putting them at risk of significant psychological harm.

510 The particular circumstances of Andrew Pound and Marco Gillespie-Jones, and the trauma they have experienced, is clearly likely, on the basis of Dr Deacon's general observations, to exacerbate the harshness for them of incarceration in Grevillea.[226]

511 The transfer documents confirmed that the decision maker had not understood how their rights will be interfered with as in both check-lists the decision-maker records in the s 22 'impact' cell that there is no interference with the right when, for reasons already stated, there clearly would be an impact on the right that ought to have been considered and was not.

512 The completion of all cells in the Client Movement Panel Matrix for each child was cursory, of which the following entries were notable examples:

(a) the decision-maker records in the s 22 'impact' cell that there is no impact identified, and for Marco Gillespie Jones that he will continue to have access to adequate and humane accommodation, food, hygiene, clothing and bedding.

(i) the decision-maker records in the s 17(1) 'impact' cell that his parents may find it easier to visit at Grevillea as they live in Point Cook, but the assessment continues, noting that the family would need to be contacted and support options explored to assist them increase contact with him;

(ii) the decision-maker simply records in the s 17(2) 'impact' cell that he would be able to continue in the school holiday program and his formal education when the school year commenced;

(i) the decision-maker records in the s 17(1) 'impact' cell that he will be supported to maintain phone contact with his family, who will be notified of the transfer and what supports might be offered to his mother to visit will be considered;

(ii) the decision-maker simply records in the s 17(2) 'impact' cell that he would be able to continue in the school holiday program and his formal education when the school year commenced.

513 The statement 'nil identified' with respect to the s 22(1) right reveals that the decision-maker did not have even a basic understanding of how the relevant rights would be affected by the transfer because it indicates that the decision maker was mistakenly of the view that the Charter rights were not even 'relevant', when they clearly were. The identification of the need to be proactive to avoid an adverse impact on a right was not accompanied with any particular plan or process for implementation, monitoring or review and that does convey the flavour of lip service. Andrew Pound's evidence as to what occurred once he was transferred, noted at [364] and following, should be recalled.

514 I accept the plaintiffs' submission that the completed check-lists do not evidence the level of consideration required for proper consideration of the relevant rights. The structure of the template Matrix document is not itself fundamentally flawed, but the content is too superficial to support a proper consideration. Ms Henderson states that she seriously turned her mind to the possible impact of the decision on each child's rights and the implications thereof for the affected person, which is what proper consideration requires,[227] but the documentation does not bear this assertion out in substance. Alternatively, the content of her serious consideration was limited to the matters that were placed before her by the documents. My earlier and fuller discussion of the characteristics of Grevillea that engage the relevant human rights of any children to be transferred there is relevant in this context. Proper consideration requires that those matters ought to have been considered when transferring individual children into Grevillea.

515 The evidence showed that on 1 February 2017, at all times prior to that date, and for at least several weeks thereafter, Grevillea was not suitable for any child. I am persuaded that the defendants determined that a certain number of children had to be transferred to Grevillea, regardless of its suitability for detaining children for the purposes that they identified in submissions. Giving lip-service to the Charter whilst working towards a pre-determined outcome does not amount to proper consideration.

516 The defendants failed to establish that the Secretary's delegate gave proper consideration to relevant human rights when making the decision to transfer each of the plaintiffs. Issue 9 is answered in the negative.

517 Neither party developed a submission, either written or oral, in respect of the issue of whether the Governor in Council gave proper consideration to the relevant human rights under s 38(1) with respect to the Weapons Exemption.

518 The evidence was that a brief was developed for the Minister of Police to advise the Governor in Council in respect of the making of the Weapons Exemption. The Charter assessment was, apparently, confined to four paragraphs in the briefing paper, concluding that the proposed exemption was compatible with relevant Charter rights. The brief followed on recommendations from DoJR. What the evidence revealed is set out at [312] and following.

519 Clearly, what was critical to this process was the conclusion put to the Minister that the assessment had regard to the limitations and constraints upon the deployment of SESG under the relevant Operations Orders, the specialist training of SESG and ERG officers, and the particular direction given to SESG and ERG regarding the additional considerations they must take into account, as informed by the Charter, which applied because the detainees were children.

520 The question was whether the uncritical acceptance of these conditions as grounding Charter compatibility constituted proper consideration.

521 The salient terms of the relevant operation order were discussed at [315]. It is not apparent that the terms of the Operations Order were complied with during the incident in Wing B on 13 February 2017, in particular the guidelines for the use of OC products found in section 6 of the 'Addendum to Operation Order for Emergency Response to Grevillea Youth Justice Precinct - Deployment of Emergency Response Group'. I am not satisfied that an evacuation route became available before OC spray was used on that occasion. The only suitable evacuation route was to the exercise yard and was not available to detainees in Wing B until after the spray was used, when DHHS staff appear to have opened the door.

522 I am also not satisfied that a suitably trained youth justice medical professional was present at Grevillea when the spray was used, or that Oxy Viva was available. Marco Gillespie-Jones' evidence was that he was unable to see for around half an hour after the incident and did not receive any medical treatment. Andrew Pound was given an asthma puffer by a Doctor, but this does not appear to have been immediately after the spray event.[228] In any case, no area for medical treatment of detainees and YJC officers was immediately available in either Wing A or B prior to use of the OC spray other than a single re-purposed cell in each Wing which could be used to comfortably treat no more than one patient at a time. I am unable to conclude that the officers took environmental factors which may affect the welfare of all personnel within the area prior to using the spray into consideration or that decontamination procedures were carried out as soon as possible following its use. The remaining consideration was not relevant.

523 The plaintiffs did not put in issue whether the conditions of the Weapons Exemption itself had been complied with, requiring exempt officers to observe all statutory and regulatory instructions governing the use of OC spray unless inconsistent with the CYF Act, and to have successfully completed training requirements. However, the evidence before me raised the issue whether the first condition specified in the Weapons Exemption, being that any relevant Operations Order must be complied with, received proper consideration. It was, as the defendants submissions to me made clear, a significant condition on the use of OC spray that was intended to demonstrate that the limits on human rights were reasonably justifiable. If the terms of the Operation Order upon which the justification of limitations relied were not practical or realistic, could it be said that the public authority gave proper consideration to the relevant human right?

524 The evidence presented by the videos of the incident on 13 February suggested that, prima facie, conditions of the Operation Order, in particular the guidelines on use of OC product, were not practical and realistic. On the actual occasion of the use of OC spray, it does not appear that any of those conditions was satisfied. Moreover, the events depicted in the videos do not, to my mind, admit the possibility of compliance with those guidelines. What is highlighted is, perhaps, an operational difference between exempting SESG officers, who are invited to respond to higher risk incidents by the DHHS's Director, Secure Services, or in his or her absence, the Officer in Charge of Grevillea, and ERG officers, who are present daily as part of Grevillea's staffing roster. It was an ERG officer who deployed OC spray on 13 February 2017. However, the addendum to the Operations Order dated 29 January 2017 (that coincided with the Weapons Exemption) contains the same guidelines on use of OC spray by ERG officers as apply to SESG officers.

525 It is reasonable to conclude that a decision maker would be comforted that limits on human rights were demonstrably justified as reasonable when reviewing the guidelines for use of OC spray - that is, that an evacuation route must be available, consideration of environmental factors was mandated, and appropriate medical and decontamination processes would be followed immediately following its deployment. It is a necessary step in a proper consideration of the matter to contemplate the circumstances in which the spray will be deployed. The benefits of OC spray in avoiding escalation of confrontational violence is undoubtedly a matter to weigh in the balance, but so too are the effects that are likely to be experienced by persons other than those directly involved (the bystanders). It would have been clear to the decision maker that in the confined space of Grevillea, there would be a real question of the rights of the bystanders. Giving proper consideration to the s 22(1) right for bystanders to be treated humanely and with respect for dignity, the decision maker ought to have considered the consequences for them, because they would be different in alternative circumstances. In a confined space such as Grevillea, the guidelines for use of OC spray assume importance. For example, one might postulate the consequences if the incident occurred in Wing A where it was necessary to handcuff detainees on order to escort them to the exercise yard. It cannot be seriously contested that there is not indignity and a want of humanity in using OC spray in circumstances where an adverse effect will be suffered by innocent persons.

526 Proper consideration required contemplation of the circumstances in which OC spray was likely to be used, and not just by SESG officers when invited in but by ERG officers in Grevillea as part of the staff who are present daily in the Unit and armed with OC spray. Such officers will, almost certainly, react instinctively in an escalating incident. That is to be expected. Although the video evidence makes plain that they did so, the actual consequences that must follow due to the structure, layout and practical constraints of Grevillea ought to have been considered by the decision makers. Even if they reacted according to their training, the proposition that the guidelines that may have influenced the Minister's consideration would first be followed is fatuous.

527 I have not been persuaded by the defendants, on whom the onus falls as the issue was raised on the evidence, that proper consideration was given to the relevant human rights of bystander detainees.

528 Once that failing is recognised, it follows that the public authority did not give proper consideration to a relevant human right and under the second limb of s 38(1) Charter unlawfulness in the making of the Weapons Exemption is established.

529 Issue 15 is answered in the negative, 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.

530 It is convenient to restate in summary form my findings. First, none of -

(a) 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;

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

(c) 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, the jurisdictional facts argued for by the plaintiffs. None of the impugned decisions was invalid on that ground.

531 Secondly, I have found that the Secretary was not required to accord procedural fairness to either of Marco Gillespie-Jones and Andrew Pound before they were transferred to Grevillea.

532 Thirdly, 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.

533 Fourthly, 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.

534 Fifthly, 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.

(b) An order requiring the removal of the plaintiffs to a lawfully established remand centre or youth justice centre.

(c) An injunction prohibiting the defendants from detaining any of the plaintiffs at Grevillea.

(d) An order in the nature of certiorari quashing the Grevillea Orders.

(e) A declaration that the Grevillea Orders are invalid.

(f) An order in the nature of certiorari quashing the Weapons Exemption.

(g) A declaration that the Weapons Exemption was invalid.

(h) An order in the nature of certiorari quashing the Transfer Decisions in respect of Marco Gillespie-Jones and Andrew Pound.

(i) A declaration that each of the Transfer Decisions was invalid.

(j) A declaration that the Grevillea Orders were unlawful under s 38(1) of the Charter by reason of being acts incompatible with a human right.

(k) A declaration that each of the Transfer Decisions was unlawful under s 38(1) of the Charter by reason of being made without proper consideration of any relevant human right and/or an act that is incompatible with a human right, being the relevant Charter rights.

(l) An order in the nature of certiorari quashing the Grevillea Orders and the Transfer Decisions for breach of the Charter.

(m) A declaration that the Weapons Exemption was unlawful under s 38(1) of the Charter by reason of being a decision incompatible with a human right.

(n) An order in the nature of certiorari quashing the Weapons Exemption for breach of the Charter.

536 As I understood the plaintiffs' submissions, the relief sought under sub paragraphs (a) - (i) of the preceding paragraph was on the basis of a finding of jurisdictional error for want of jurisdictional fact. Having regard to my findings, the plaintiffs are not in a position to press for that relief.

537 In any event, habeas corpus is a writ, not a remedy. It is a mechanism for making a substantive order releasing a person from detention and is not a remedy in and of itself. As the defendants submitted, the writ is a means 'to test the legality of a given restraint on liberty'[229] or 'to test the lawfulness of the arrest and detention';[230] it is 'the ancient and most celebrated and most efficacious procedural instrument of the common law' that 'provides an immediate, expeditious and effective machinery for vindicating and securing the liberty of the subject'.[231] For this reason, Roberts CJ (in dissent as to the result) observed in Boumediene v Bush[232] that '[h]abeas is most fundamentally a procedural right, a mechanism for contesting the legality of executive detention.' Similarly, in M68 v The Commonwealth,[233] Gageler J noted that 'the question of amenability to the writ is quite distinct from the question of the legality or illegality of the detention.' The liberty of the subject may be secured by 'orders consequent upon a writ of habeas corpus, directing the release of'[234] the person detained, not that such liberty may be secured by the writ of habeas corpus alone.

538 Order 57 of the Supreme Court (General Civil Procedure) Rules 2015, lays out a two stage process on an application for the writ of habeas corpus, that reflects the nature of the writ as a procedural right:

(a) the party seeking the writ must first show probable cause to consider that the detention under challenge may be unlawful; [235] and

(b) the defendant must make a return to the writ showing that the detention is in fact lawful.[236]

539 If the plaintiffs had on an application under r 57.02 successfully contended that, on the proper construction of the relevant statutory provisions, there was jurisdictional error for want of jurisdictional fact and the detention of the plaintiffs may be unlawful, the court under r 57.03 might have ordered that a writ issue. On the return of the writ, the defendants would need to satisfy the court that the jurisdictional fact existed.

540 A writ of habeas corpus does not provide a procedure for seeking judicial review for latent jurisdictional error. While the Court can determine whether a public authority whose jurisdiction depends on objective facts lacks jurisdiction to make the order or warrant because those facts do not exist,[237] the writ does not provide a remedy by way of judicial review.[238] The question whether judicial review affords a more appropriate remedy than the writ of habeas corpus may be a question of fact and degree. Thus in the context of the Habeas Corpus Act 2001 (NZ), in Manuel v Superintendent of Hawkes Bay Regional Prison,[239] the New Zealand Court of Appeal observed:

[I]t will be a rare case, we think, where the habeas corpus procedures will permit the Court to inquire into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants. This is particularly likely to be the case where the decision maker is not the detaining party. There may not be a bright line which distinguishes between those arguments which are available on habeas corpus applications and those which can only be deployed (if deployed at all) in judicial review proceedings. Nonetheless we see the test as coming down to whether the arguments in issue are properly susceptible to fair and sensible summary determination. If they are, they can be addressed in habeas corpus proceedings. If not, they must be held over for evaluation in judicial review proceedings.

541 The writ of habeas corpus procedure is plainly not appropriate in proceedings where in order to establish the unlawfulness of the instrument authorising detention, the party seeking the writ 'sought and obtained orders for discovery and both parties have filed such affidavits as they proposed to rely upon; both parties have led oral evidence from such witnesses as they wished to call and were available ... and both parties have cross examined the witnesses called by the other.'[240] Rather, in such a case 'if relief were warranted, it would be injunctive relief, but the practical effect would be the same as if the detention were found to be unlawful upon a writ of habeas corpus.'[241]

542 In the present proceedings, the substance of the relief claimed was an order that the Grevillea Orders be quashed. There has been discovery and the service of subpoenas and the parties relied on extensive affidavit evidence with cross-examination of some deponents. It is unnecessary to employ the writ as the plaintiffs' entitlement was to relief or to a remedy under s 39 of the Charter. Probable cause to consider that the plaintiffs' detention may be unlawful has only arisen on the basis of the court's findings following its inquiry into Charter unlawfulness under s 38(1). In these circumstances, the writ of habeas corpus does not provide an appropriate mechanism for the determination of the plaintiffs' claim for relief, and the plaintiffs were right not to press for such relief in the event that only their Charter claims succeeded.

543 In Bare v IBAC,[242] Warren CJ observed:

Section 38 classifies certain conduct of a public authority in connection with a human right as unlawful and section 39 describes the remedies available to a person claiming under the Charter.

544 Turning then to s 39 of the Charter, that section states:

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

545 Section 39 mandates that Charter unlawfulness supports any relief or remedy available at law in relation to administrative or executive acts or decisions where:

(a) that same act or decision is challenged on the basis of non-Charter unlawfulness, for example jurisdictional error; and

(b) that same relief is also being sought for the non-Charter unlawfulness.