Children detained in an adult prison in Victoria were deprived of their human rights and faced risks to their mental health, a supreme court judge has found.
Justice John Dixon delivered his findings on Thursday after a long-running legal battle between lawyers representing youths and the Victorian government. A number of youths were transferred from youth detention facilities to the adult prison after ongoing rioting and damage to existing youth facilities.
However, some of those moved to Barwon adult jail were not involved in the rioting. The supreme court ruled last year that moving the youth to Barwon adult prison was unlawful but, in response, the Victorian government reclassified a section of the prison as the Grevillea youth justice unit and it remained in use.
But it prompted the Human Rights Law Centre, which is representing the children, to issue a further legal challenge. The centre argued that Grevillea was contained in an adult environment and that this environment breached the human rights of children.
Dixon found that children were handcuffed during limited periods of release from their cells for exercise and were placed in continuous isolation and restrained. Due to the nature of the environment of an adult prison, the children risked developing depression, anxiety, cognitive issues and paranoia, and existing mental health issues risked being exacerbated, Dixon found.
This was not justifiable or reasonable “in a free and democratic society valuing equality, human dignity and freedom”, Dixon said.
Dixon has reserved his orders to the state government until Friday.
A lawyer at the Human Rights Law Centre, Alina Leikin, said many of the children had been exposed to family violence, abuse, trauma and neglect.
“Yes, they’ve made some terrible mistakes but locking them up in a maximum security adult prison is not the answer,” she said. “The Victorian government needs to learn from the abuses at places like Don Dale and ensure children are treated humanely and in ways that will maximise their chances of leading a normal life when they are released.”
The Centre said it would be advising clients of their rights including the possibility of seeking compensation from the government.
The principal breaches of the youths’ human rights included “the impact of Grevillea’s built environment on youths who are children detained there, which was, and remains, immutably that of a maximum security adult gaol,” Dixon said.
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” was also in breach of their human rights, he found.
He added that the prison placed “limitations on the developmental needs of detainees, specifically their physical, social, emotional, intellectual, and spiritual needs, that were affected by the use of Grevillea as a youth justice precinct”.
The youth affairs minister, Jenny Mikakos, responded to the decision by saying “I make no apology for the fact we took the steps necessary to keep the community safe”.
“We were faced with very challenging circumstances and we did what was necessary,” she said.
Lawyers representing the government told Dixon they would consider whether to appeal the case.
Dixon responded: “I don’t see that my reasons are infected with any error that might worry the court of appeal.”
Fifteen youths remain in Barwon. Some have been held in the prison for more than five months. At times, as many as 28 children have been detained there. Lawyers say they have seen a significant cognitive decline in the young people, and that they have missed out on education and support considered critical to their rehabilitation.
The judgment means the government is prohibited from keeping the children at the prison.
Greens youth justice spokesperson Nina Springle said the government needed to move them to an appropriate facility immediately.
“The abusive, cruel treatment of detainees isn’t doing anything to make the community safer or rehabilitate these young people,” she said.
“The only way to rehabilitate these detainees is with proven therapeutic youth justice programs. Locking kids up in an adult prison to appear tough on crime isn’t helping anybody.
“I’ve lost count of the number of experts who have contradicted the government’s claims that there are no alternatives to Barwon Prison for these young people. Five senior judges have now declared that Barwon is unlawful.
“The violation of these young people’s human rights is a stain on this government.”