Children in juvenile detention People with mental health conditions After riot damage to a youth justice centre, the Victorian Government set up a new youth justice centre in a unit in the maximum security adult Barwon Prison and started transferring children as young as 15 there. The conditions in the unit were extremely harsh and children were subjected to extended solitary confinement, regular handcuffing and denied proper education. The ACT Civil and Administrative Tribunal decided a person with a cognitive disability, whom the Tribunal had previously found to lack capacity under guardianship law, could not automatically be assumed to lack capacity to consent to psychiatric treatment orders. A number of First Nations children took legal action using the Charter and other laws to challenge their transfer to the prison. In response, the Victorian Government agreed to remove all First Nations children from the adult prison. A number of non-Indigenous children then brought a similar legal action challenging the decision to set up the unit in the adult prison and transfer children there. Both the Supreme Court, and the Court of Appeal, ruled that the decision was unlawful because the Minister failed to properly consider the children’s human rights under the Charter, including the right to humane treatment and the right to protection of children as is in their best interests.127 When the Minister then made a fresh decision that kept the children in the adult prison, certain children brought a final challenge using the Charter and other laws. The Supreme Court again ruled that the government’s actions breached the children’s rights to humane treatment in detention and protection as is in their best interests. The Court ordered that the Minister stop detaining the children at the prison and all children were transferred back into existing youth justice centres. The Court also ruled that a decision approving the use of capsicum spray in the unit in the adult prison was unlawful. Extracted from Human Rights Law Centre, 101 Charter Cases, 2022.128 90 The ACT Human Rights Commission had made submissions to the Tribunal on the interpretation of ACT law in light of the ACT Human Rights Act and international law, including the Convention on the Rights of Persons with Disabilities. The submissions emphasised the presumption in international law that a person has capacity for all decisions and a person seeking to overturn that presumption bears the onus of doing so. Further, each decision affecting an individual’s rights required its own assessment of capacity. The Tribunal noted the Commission’s submissions on human rights law reinforced common law principles. The Tribunal’s decision confirmed that someone’s capacity must be determined on a decision by decision basis, assessed on a spectrum and must not be automatically negated because of a prior finding of loss of capacity for a different area of a person’s life. The ACT later substantially amended its mental health legislation. To ensure consistency with human rights law, the new provisions place greater weight on a person’s ability to consent and wishes regarding the treatment. Extracted from Human Rights Law Centre, 101 Charter Cases.129