Children held in Barwon Prison illegally, Court of Appeal rules
THE Andrews Government faces a race against time to keep a dozen violent youth thugs in our most secure prison after a humiliating legal blow.
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THE Andrews Government faces a race against time to keep a dozen violent youth thugs in our most secure prison after a humiliating legal blow.
The Court of Appeal on Wednesday ruled the government was illegally holding up to 12 teen- agers in Barwon jail after an administrative blunder.
Youth Affairs Minister Jenny Mikakos and her bureaucrats must now reclassify Barwon’s Grevillea unit as a youth jail — as they should have done before sending the youths there — before a Court of Appeal deadline of 4.30pm, Friday. Otherwise they must be moved.
If they cannot make the deadline and the youths are shifted back to the Parkville centre they trashed, guards have warned they fear a “bloodbath”. Police Association Secretary Ron Iddles also said moving the youths into police cells was not an option as they were not suitable for holding offenders long-term.
MORE: INSIDE THE ANARCHY IN YOUTH JAIL CRISIS
BARWON TO HOLD YOUTHS FROM TROUBLED PARKVILLE
ABORIGINAL YOUTHS SHIFTED OUT OF BARWON PRISON`
Regardless, the government will have to pay hefty legal costs for both itself and the thugs’ lawyers after yesterday’s ruling.
It could even face the embarrassment of the teens suing for wrongful incarceration.
The decision is another major embarrassment for Premier Daniel Andrews, who last month staked his tough-on-crime credentials on a decision to move Parkville’s rioting youths to Barwon.
Mr Andrews later insisted that he “made no apology” for sending the youths to the adult prison, as it was the “most appropriate facility”.
The crackdown hit its first snag last week, when Supreme Court Justice Greg Garde ruled the children were taken illegally to Barwon jail after November’s riot at the Parkville youth justice centre, as the minister had not given proper consideration to their rights or whether they could be delivered in the adult prison.
The government had hoped the decision would be overturned in the Court of Appeal.
Mr Andrews went to ground on Wednesday, not issuing a media statement or fronting the press pack.
His office told the Herald Sun late on Wednesday that it stood by its choices.
“We make no apologies for any of the decisions we have taken on this matter,” a spokeswoman said.
The spokeswoman said the Premier had spent time with his family this week but was not on holidays.
It is understood both Mr Andrews and Ms Mikakos are furious with advice they were given by the Department of Health and Human Services.
A government source said the department’s blunder would be examined very closely, while the Premier would stand by his minister.
Ms Mikakos on Wednesday said the government was considering the court’s decision and would explore all its options.
“The government has always said that young offenders were sent to the Grevillea unit because the damage caused by the riot in November made parts of the Parkville facility unfit for purpose,” Ms Mikakos said.
“Let’s not forget why these young offenders are at the Grevillea unit in the first place, and that is the extensive damage they and others caused to the Parkville facility that took away a significant part of our operational capacity.” She said the hundreds of thousands of dollars in damage would take months to fix.
Human Rights Law Centre spokesman Hugh de Kretser — who represented most of the teens with Fitzroy Legal Service — said after both court decisions it would be an “unconscionable act” to reconstitute part of Barwon as a youth justice centre.
He said there was ample room in both the Parkville centre and the Malmsbury Youth Justice Centre for the teens.
But a Parkville prison source said children on remand were already being kept in isolation cells at the facility and the girls’ unit had been split to accommodate boys.
“They could put them on mattresses in the floor but could you imagine what they would be like on New Year’s Eve. It would be a bloodbath if they came back here.”
The government moved the children out of Parkville saying it was unsafe as a result of the considerable damage.
Yesterday afternoon, the Court of Appeal upheld Justice Garde’s decision, meaning the children will have to be moved.
“No error has been shown in his Honour’s finding that the minister — and hence the Governor in Council, acting on the minister’s advice — failed to take into account relevant considerations bearing on the exercise of the power.
“At the same time, we have concluded that his Honour erred in finding that the Orders in Council were made for an improper purpose,” Chief Justice Marilyn Warren said yesterday.
“Failure to take into account relevant considerations constitutes jurisdictional error and is sufficient, by itself, to support the judge’s finding of invalidity.”