The Victorian government has agreed not to hold Indigenous children in an adult prison in an 11th-hour settlement before a legal challenge.
But the agreement does not cover non-Indigenous children and does not bar the Andrews government from moving Indigenous children into an adult jail in future, so long as it consults the commissioner for Aboriginal children and young people, Andrew Jackomos.
The deal will mean Indigenous children – who make up 80% of all children in youth detention in Victoria – will continue to be held in Parkville or Malmsbury youth detention facilities but up to 15 non-Indigenous children will remain at Barwon maximum security jail.
The settlement was reached on Tuesday, the day before the Victorian Aboriginal Legal Service (VALS) was due to challenge the legality of holding any child in an adult prison in a high-profile trial at the supreme court.
It followed a decision by the Victorian government last week to move up to 40 children from Parkville youth detention centre to a designated unit at Barwon after riots caused significant damage to the former.
Ruth Barson from the Human Rights Law Centre, who supported VALS in the challenge, said it was the good outcome for Indigenous children but she was concerned about non-Indigenous children who could remain in Barwon.
“As lawyers, our obligation is to act in the absolute best interest of the clients and the government presented an extraordinary settlement offer, which basically ensured that no Aboriginal or Torres Strait Islander detainee, past, present or future, would be transferred to Barwon,” Barson told Guardian Australia.
“But it shouldn’t be up to lawyers to litigate for the safety of every single child in Victoria. It’s now up to Premier Andrews to put in place policies to ensure that all children are safe.”
The agreement says that Indigenous children can be held in adult prisons in “exceptional circumstances, provided the Department of Health and Human Services consulted Jackomos first”.
The minister for children and young people, Jenny Mikakos, said: “The settlement made does not preclude Aboriginal young people being transferred to the Grevillea unit at Barwon prison.”
Mikakos maintained that the decision to move a group of children from Parkville to Barwon was “consistent with relevant legislation and Victoria’s Charter of Human Rights and Responsibilities.”
Barson visited children in Barwon on Saturday and described conditions in the unit, which has been rebadged as the Grevillia youth justice facility, as “inhumane”.
“They included solitary confinement, [the detainees] hadn’t been outside for close to a week, they were pacing up and down and they had been threatened with dogs,” she said.
Barson said it was “deeply concerning that other children are being left in those conditions”, adding that, “Protecting one group of children in no way excuses the mistreatment of another and we know that today there are at least 15 other children in Barwon in inappropriate facilities.”
The chief executive of VALS, Wayne Muir, said he hoped non-Indigenous children would be granted the same protection.
“To our non-Indigenous brothers and sisters, sons and daughters, who the government is leaving to rot in the state’s worst adult prison, we stand by you,” he said in a statement.
“Aboriginal people know all too well what it is like to be harmed by government policies. While we have an obligation to act in the best interests of our community and clients, children not covered by this case remain in danger. The Victorian government must protect the rights of all children.”
The acting chief executive of Save the Children, Mat Tinkler, said the Andrews government had “failed to learn the lessons of Don Dale”.
Detainees at the Northern Territory’s Don Dale youth detention centre were moved to Berrimah, an adult prison that has now become the new Don Dale youth detention centre, following a teargassing incident in 2014 that has since formed the basis for a royal commission into youth detention.
Tinkler said reports of conditions at Barwon were concerning.
“If the premier gives in to kneejerk reactions to ‘get tough’ on young offenders rather than prioritising rehabilitation, the damage will extend to the community,” he said.
“Governments need to invest even more in early intervention programs which are far more effective at diverting children away from a life of crime – which is a better outcome for them and the community.”
The Department of Health and Human Services has denied that children at the new Grevillea unit were held in solitary, saying: “The Grevillea unit will operate as any other youth justice facility and standard management does not involve 20 hours of lockdown per day.”
It said it would work to make the unit “appropriate” for young people until upgrades at Parkville, expedited due to riot damage, were completed. There is no timeframe on how long that might take.
