Vic Govt Faces Legal Action Over Children in Barwon Adult Jail

The Victorian government faces new legal action, led by the Human Rights Law Centre, to stop children being detained in Barwon prison.

In the Supreme Court challenge, launched on Wednesday, the Human Rights Law Centre is seeking to have the prison shut down as a youth justice facility.

The organisation’s executive director, Hugh de Krester, told Pro Bono News the conditions in Barwon prison’s Grevillea unit were unsafe for children.

“The case will look at the mistreatment that [children] are enduring there,” de Krester said.

“We’re seeing ongoing solitary confinement, children locked in their cells for up to 23 hours a day, for days on end, children with extremely limited or no time outdoors, again for days on end, children being handcuffed in outdoor areas, the denial of proper education to mandatory school-aged children, the use of capsicum spray by adult prison staff.

“At least two boys have self-harmed in the unit and one 16-year-old boy was recently hospitalised after the government ignored our warnings to transfer him out of there.”

The Human Rights Law Centre said prison guards also used tear gas and expandable batons on children.

There are currently only around 20 children and young people held at Barwon, including boys as young as 15. The majority are on pre-trial detention.

Victorian Minister for Families and Children Jenny Mikakos said the government would “strongly defend any court action”.

“Barwon prison’s Grevillea unit was lawfully established and is safe, secure and functioning appropriately as a youth justice facility and remand centre,” Mikakos said.

De Kreseter said the Victorian government’s youth justice policies were lagging behind the rest of the country.

“At a time when governments around the country are improving youth justice systems after seeing the horrors of Don Dale, the Andrews government is headed in the opposite direction,” he said.

“Using Barwon prison to lock up children is bad for the children and bad for community safety.

“We need safe, humane, age-appropriate youth justice facilities that help to get these kids’ lives back on track. Barwon prison does the opposite.”

Late last year the Victorian Court of Appeal, upholding an earlier Supreme Court decision, found that the Victorian government acted unlawfully in using Barwon adult prison as a youth justice facility.

“The government’s decision to establish Barwon as a youth justice facility was [found to be] unlawful because they didn’t properly consider mandatory considerations around the children’s wellbeing and their human rights,” de Krester said.

However, the government responded by making a new decision on 29 December to continue to use Barwon.

De Krester said if the latest legal challenge was successful, the government “will not have a choice” to send children to Barwon.

“This is a case that says that Barwon, by it’s nature as an adult maximum security jail, cannot be a lawful youth justice facility,” he said.

“So if we’re successful before the court the government will not be able to make a fresh decision and continue to use Barwon as a place to lock up children in the future.”

In a separate Supreme Court bail case on 6 January, concerning a boy held at Barwon, the judge questioned the prison’s suitability for children.

“The overwhelming impression given from the building and its surrounds is that Barwon Children’s Remand Centre is an adult prison and not a centre for holding children on remand… it is difficult to envisage that, whatever measures are taken with respect to programs and other resources that might be made available to the residents, this distinct impression will materially change,” Justice Elliott said.

The Human Rights Law Centre was joined by the Victorian Aboriginal Legal Service, Fitzroy Legal Service and Amnesty International at the announcement.