A group of juvenile offenders will spend Christmas in Victoria's maximum security adult jail despite a court ruling that their transfer to Barwon Prison was illegal.
A judge initially ordered the 15 teenagers be moved to a youth facility by Thursday afternoon but later changed his mind after the government argued it had nowhere else to house them.
The juvenile offenders were first transferred to the Grevillea unit at Barwon in November after they trashed the Parkville and Malmsbury youth detention facilities during riots.
Victorian Supreme Court Justice Greg Garde on Wednesday ruled the transfer was unlawful because it "failed to give proper consideration to their human rights".
But after the government argued it had nowhere else to send the teenage offenders Justice Garde granted a stay on their removal.
"My decision is that the best thing possible for the young persons, at this point in time, is unfortunately to remain where they are," he said on Wednesday afternoon.
"Simply because there is nowhere else that is satisfactory or safe for them to go."
The stay is in place until December 28 pending further orders by the court and the government's intention to appeal Wednesday's judgment.
Claudia Fatone from the Fitzroy Legal Centre called the ruling "absolutely significant” and said orders to move youngsters to Barwon were “unlawful”.
“We maintain that it’s absolutely inappropriate to house children in that facility, which is designed for adult prisoners," she told SBS.
"The youth justice system is predicated on the premise that children have the opportunity to be rehabilitated and that’s what is provided within youth justice facilities. So that means access to education and other programs."
Ms Fatone said the youngsters were experiencing "a very difficult environment".
"Their physical and mental health is struggling and it’s likely that being housed in a maximum security facility with no access to education, limited access to family and other services, will have a negative effect on these young people," she said.
The Grevillea unit at Barwon Prison is being operated as a youth remand and custodial centre by the Department of Health and Human Services.
Up to 40 youths were transferred to the prison in November after riots damaged the two youth detention facilities.
The Andrews government in late November agreed to move Indigenous teens out of Barwon after a legal challenge was launched by the Victorian Aboriginal Legal Service.
Lawyers for the remaining non-Indigenous youths then challenged their transfer on the basis it was unlawful and breached their human rights.
In his judgment on Wednesday, Justice Garde found the Grevillea unit had not been lawfully established as a youth remand centre under the relevant legislation.
He said the government had transferred the youths for "an improper and extraneous purpose" of emergency accommodation.
Ruth Barson from the Human Rights Law Centre described the decision as "significant", but was concerned that the teenagers were not receiving the proper educational opportunities inside the prison.
"Appropriate youth justice facilities are also registered schools, so children are able to undertake VCAL (Victorian Certificate of Applied Learning) or VCE ( Victorian Certificate of Education), or other courses for which they can get accredited or get certificates for. Barwon is not a registered school because it’s unsafe for children," she told SBS.
"Children who are housed there aren’t able to attain a certificate. It’s unequivocally unfit for children, they’re being held in a protection unit, in the state’s worst prison. It doesn’t have any of the facilities that a youth justice facility would have, like an outdoor area, or classrooms, or program areas."
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Ms Barson said the youngsters were being held separately to the prison's adult population, but claimed that corrections officers didn't have the qualifications to deal with offenders under 18.
"It’s incumbent upon our government that if they are to detain children, that they be detained in lawful facilities, and in facilities where their welfare needs are able to be met, and their human rights are being able to be met," she said.
"Today’s decision is clear that Barwon cannot provide those types of facilities and guarantees. An adult prison is no place for youth offenders."
The government has been ordered to pay the costs of the teenagers' legal challenge.
Opposition Leader Matthew Guy says Youth Affairs Minister Jenny Mikakos should lose her job following Wednesday's legal defeat.
The Greens argue Labor should abandon its "race the bottom" on law and order issues in Victoria.
"That the government postured over their breach of the human rights of children in the youth justice system is sickening," Greens MP Nina Springle said in a statement.
