Certain Children v Minister for Families and Children & Ors (No 2)

[2017] VSC 251

Supreme Court of Victoria

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Interrogate

Catchwords

1. Administrative Law
2. › Jurisdictional error
3. › Jurisdictional fact
4. › Whether statutory entitlements and prohibitions constitute jurisdictional facts conditioning exercise of power
5. › Whether facility must be capable of fulfilling statutory obligations before power validly exercised
6. › Children, Youth and Families Act 2005 (Vic), ss 478, 482, 484, 487
1. Administrative Law
2. › Procedural fairness
3. › Exclusion by statute
4. › Transfer of detained children between youth justice facilities
5. › Whether right to be heard before transfer decision
6. › Children, Youth and Families Act 2005 (Vic), s 484
1. Human Rights
2. › Charter of Human Rights and Responsibilities Act 2006 (Vic)
3. › Public authorities
4. › Obligation not to act incompatibly with human rights
5. › Obligation to give proper consideration to human rights
6. › Protection of children
7. › Humane treatment when deprived of liberty
8. › Whether limits on rights demonstrably justified
9. › Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 17, 22(1), 38(1)
1. Human Rights
2. › Charter of Human Rights and Responsibilities Act 2006 (Vic)
3. › Remedies for Charter unlawfulness
4. › Whether certiorari available for non-jurisdictional Charter error
5. › Whether declarations and injunctions appropriate
6. › Discretionary considerations
7. › Charter of Human Rights and Responsibilities Act 2006 (Vic), s 39(1)

Quick Take

The entitlements under s 482(2), prohibitions under s 487, and purposes under s 478(c) of the Children, Youth and Families Act 2005 (Vic) do not constitute jurisdictional facts conditioning the valid exercise of the power to establish youth justice facilities under s 478 or to transfer children under s 484. However, decisions establishing youth justice facilities and transferring children must comply with s 38(1) of the Charter, and where the decision-maker fails to give proper consideration to human rights or acts incompatibly with them, declarations and injunctions may be granted even where certiorari is unavailable. The Secretary is not required to afford procedural fairness to children before making transfer decisions under s 484(1) in the custodial context.