IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Judicial Review and Appeals List
S ECI 2023 00572

MB (a pseudonym)	Plaintiff	
		
v  		
		
CHILDREN'S COURT OF VICTORIA	First Defendant	
		
and		
		
SENIOR CONSTABLE DEAN PILATI	Second Defendant	

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JUDGE:	McDonald J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	23 September 2023	
DATE OF JUDGMENT:	21 November 2023	
CASE MAY BE CITED AS:	MB v Children's Court of Victoria & Anor	
MEDIUM NEUTRAL CITATION:	[2023] VSC 666	

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JUDICIAL REVIEW – Order made by Children’s Court of Victoria for the retention of DNA sample taken from a child – Whether order invalid by reason of failure of Magistrate to consider all the circumstances relevant to whether order should be made – Whether Magistrate’s decision was legally unreasonable – Whether order invalid by reason of non-compliance with ss 13(a), 17(2) and 38 of the Charter of Human Rights and Responsibilities Act 2006 – Application for orders in nature of certiorari quashing order granted - Crimes Act 1958 ss 77B, 464, 464SC(3)(b)(i), 464SD, 464T, 464ZFB(1), 464ZFB(1AA), 464ZFC - Charter of Human Rights and Responsibilities Act 2006 ss 4(1)(j), 7(2), 32(1), 38(1)(2).

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms K Evans SC with 
Ms H Canham	Victorian Aboriginal Legal Service	
			
For the First Defendant	No Appearance		
			
For the Second Defendant	Ms E Ruddle KC with
Mr G Buchhorn	Solicitor for Public Prosecutions	
			
For the Attorney-General	Ms R Orr KC, Solicitor-General for the State of Victoria, with 
Mr T Farhall	Victorian Government Solicitor’s Office	

HIS HONOUR:
Introduction and background
1	On 13 June 2022, the plaintiff, MB, who at that time was 16 years of age, voluntarily provided a DNA profile sample to Victoria Police under s 464SC(3)(b)(i) of the Crimes Act 1958 (‘the Act’). The sample was obtained in connection with offences with which the plaintiff was charged on 12 March 2022, including aggravated home invasion contrary to s 77B of the Act.  Two adult co-accused were charged arising out of the same incident. Analysis by the Victoria Police Forensic Services Department of the plaintiff’s DNA profile sample did not produce any evidence in support of the plaintiff’s guilt for those offences.
2	The charges were heard and determined summarily in the Children’s Court of Victoria sitting at Melbourne on 24 August 2022.  Following a sentencing indication, MB pleaded guilty to offences including aggravated home invasion, for which he was convicted and sentenced to 165 days of detention in a Youth Justice Centre, all of which constituted time served.  He was released from detention that day.
3	On or around 12 September 2022, the second defendant, Senior Constable Dean Pilati, applied under s 464ZFB(1) of the Act for an order permitting the plaintiff’s DNA profile sample and any related material and information to be retained. The application under s 464ZFB(1) of the Act for retention of the plaintiff’s DNA profile sample was heard and granted by a Magistrate in the Children’s Court on 25 November 2022.  
4	By an amended originating motion MB seeks an order quashing the order for the retention of his DNA. For the reasons which follow I have concluded that the Order should be quashed. MB is also entitled to a declaration that the Order is invalid.
Legislative framework
5	The plaintiff’s DNA profile sample was taken by way of buccal swab at Parkville Youth Justice Centre on 13 June 2022 under s 464SC of the Act, which relevantly provides:
(2) A police officer may request a DNA person who is a child to give a DNA profile sample only if the police officer is satisfied that the taking of the sample is justified in all of the circumstances, and the DNA person—
(a) is believed on reasonable grounds of having committed the DNA sample offence; or
(b) has been charged with the DNA sample offence; or
(c) has been summonsed to answer to a charge for the DNA sample offence.
(3) A DNA profile sample may be taken from—
…
(b) a DNA person who is a child if—
(i) the child and a parent or guardian of the child give informed consent; or
(ii) a senior police officer gives an authorisation under section 464SE.
6	The expression “DNA person” is defined at s 464 of the Act to include a child above the age of 15 years but under the age of 18 years who has been charged with a DNA sample offence.
7	A “DNA profile sample” is defined at s 464 of the Act to mean, relevantly, a sample of saliva taken for the purpose of deriving a DNA profile.
8	A “DNA sample offence” is defined at s 464 to include aggravated home invasion, contrary to s 77B of the Act, which is the offence in respect of which MB’s DNA profile sample was taken.
9	The requirements for the giving of informed consent by the plaintiff and his parent or guardian are set out at s 464SD of the Act. MB and his father signed a form evidencing their consent at Parkville Youth Justice Centre on 13 June 2022.
10	Headed “Retention of information following finding of guilt etc”, in Part III of the Act, s 464ZFB of the Act provides relevantly:
(1) If at any time on or after the commencement of section 26 of the Crimes (Amendment) Act 1997— 
(a) a DNA profile sample is taken from a DNA person who is a child in accordance with section 464SC or 464SE or a forensic procedure is conducted on a child in accordance with section 464U(7) or 464V(5); and
(b) a court finds the child guilty of—
(i) the offence in respect of which the DNA profile sample was taken or the forensic procedure was conducted; or
(ii) any other offence arising out of the same circumstances; or
(iii) any other offence in respect of which evidence obtained as a result of the DNA profile sample or forensic procedure had probative value—
a police officer, at any time after the finding of guilt but not later than 6 months after the final determination of an appeal against conviction or sentence or the expiry of any appeal period in respect of the offence (whichever is the later), may apply to the court referred to in paragraph (b) or to the Children's Court for an order permitting the retention of any sample taken and any related material and information and the court may make an order accordingly.
…
(2) A court hearing an application under subsection (1) or (1A)—
(a) must take into account the seriousness of the circumstances of the offence in determining whether to make the order under subsection (1) or (1A), as the case requires; and
(b) must be satisfied that, in all the circumstances, the making of the order is justified; and
(c) may make such inquiries on oath or by affirmation or otherwise as it considers desirable.
…
(3) If a court makes an order under subsection (1) or (1A), it must give reasons for its decision and cause a copy of the order and reasons to be served on the person on whom the forensic procedure was conducted.
(4) A failure of a court to comply with subsection (3) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a).
11	Section 464ZFC(1) of the Act imposes an obligation on the Chief Commissioner of Police without delay to destroy, or cause to be destroyed, any sample taken and any related material and information if no application is made for its retention under s 464ZFB(1) within the specified period or if a court refuses to make an order under s 464ZFB(1).
The application for a retention order
12	The transcript of the hearing on 25 November 2022 and the Magistrate’s ex tempore reasons are annexed to the affidavit of Ms Rosie Heselev affirmed 22 March 2023.  The Magistrate delivered the following ex tempore reasons:
The application for the retention of a DNA sample that was given as part of a matter that was dealt with by myself on the 24th August 2022, whereby the respondent pleaded guilty to charges of home invasion, aggravated home invasion with an offensive weapon, armed robbery, intention to cause injury, two counts. The application today is for the retention of that sample. That was in part relied upon for the investigation in this matter, whereby there are a number of co-accused who are still subject to a hearing in the adult jurisdiction.
The application comes before me on the back of an affidavit by Senior Constable Dean Pilati, and the considerations I must have [regard to] are pursuant to s 464ZFB and in particular I must take into account the seriousness of the circumstances of the offence in determining whether to make the order and be satisfied in all the circumstances that making of the order is justified.
Having reviewed the affidavit, heard the submissions on behalf of the respondent, I am satisfied that that order is justified, and I do intend to make that order.  And I rely on the submissions made on the affidavit. I will hand that decision on the specific reasons in a moment. Also, I note that the young person has prior matters whereby, ah, the priors are of a similar nature and are also of relevance.
In totality, the seriousness of the circumstances of the offending warrant the order. Prior convictions of the respondent are such as to warrant the making of the order. Granting of the order is in the public interest and the benefit of having the sample is for the detection of further crime.
13	On 25 November 2022 the Magistrate made an order which recorded the following as ‘Reasons’:
•	The seriousness of the circumstances of the offending warrant the order.
•	The prior convictions of the respondent are such as to warrant the making of the order.
•	The granting of the order is in the public interest.
•	The benefit of having the sample for detection of further crime.
The amended originating motion
14	MB seeks an order in the nature of certiorari to quash the 25 November 2022 order (‘the retention order’), together with declaratory relief on three grounds:
1.	The Magistrate failed to properly consider and apply the requirement under s 464ZFB(2)(b) of the Act that the Court must be satisfied that in all the circumstances the making of the order is justified;
2.	The Magistrate’s decision was legally unreasonable by reason of the Magistrate’s reliance upon the prosecutor’s erroneous submission that a retention order was necessary to allow for the legitimate disclosure of a forensic report to MB’s co-accused; 
3.	The retention order was unlawful pursuant to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) by reason of the Magistrate’s failure to consider MB’s right to privacy under s 13 (a) of the Charter and the right to such protection as is in his best interests as a child under s 17(2) of the Charter. 
Ground 1
15	I accept the plaintiff’s contention that the Magistrate referred to but failed to properly consider and apply the requirement under s 464ZFB(2)(b) that the Court must be satisfied that in all the circumstances the making of the order is justified.  I also accept the submission of the Solicitor-General that s 464ZFB requires the Court to undertake a broad evaluative assessment of whether an order is justified.  The requirement for a broad evaluative assessment is reinforced by s 464ZFB(2)(c) which provides that the Court hearing an application may make such inquiries on oath or otherwise as it considers desirable.
16	The phrase ‘all the circumstances’ emphasises the breadth of the evaluative assessment which must be undertaken before a court can have the requisite satisfaction that the making of an order is justified.  The discretion conferred under s 464ZFB(2)(c) for the Court to make such inquiries ‘as it considers desirable’ (as opposed to necessary) also reinforces the breadth of the evaluative assessment.
17	The four reasons set out in the Magistrate’s order were circumstances properly taken into account in reaching the requisite satisfaction under s 464ZFB.  However, the four matters did not constitute all of the circumstances relevant to the exercise of the power to make an order.
18	Section 464ZFB(2) is couched in mandatory terms.  The Court must be satisfied that, in all the circumstances, the making of the order is justified.  A court hearing an application for an order under s 464ZFB(1) must identify all the circumstances which bear on the question of whether the making of the order is justified.  In the present case the Magistrate identified four circumstances which justified the making of the order.  He did not identify and evaluate any circumstances which militated against the making of an order.
19	In the present proceeding there were a number of matters in addition to those identified by the Magistrate relevant to whether the Magistrate could have had the requisite satisfaction that a retention order was justified:
(i)	Any order would operate in perpetuity because the offence which MB had committed was punishable by Level 4 imprisonment or more;
(ii)	MB’s age at the time of offending;
(iii)	The degree of his participation in the offending;
(iv)	MB’s personal circumstances, including his history of mental illness;
(v)	The fact that MB’s co-accused were adults.
20	If a court makes an order under s 464ZFB(1) it must give reasons for its decision:  s 464ZFB(3).  The provision of reasons allows for an assessment of whether the Magistrate was justified in all of the circumstances to make a retention order.  In the present proceeding the Magistrate’s reasons were inadequate because they do not identify the full range of circumstances bearing upon the question of whether the Magistrate could be satisfied that the order was justified.
21	Section 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) provides that so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.  The plaintiff relies upon s 32(1) in support of the contention that ‘in so far as the implication of a mandatory consideration constitutes a rights – protective interpretation of s 464ZFB(1) and (2), that interpretation must be adopted over other available meanings.’
22	The plaintiff submits that s 464ZFB(2) should be interpreted, consistent with s 32(1), as incorporating, by implication, four mandatory relevant considerations:
(i)	The plaintiff’s personal circumstances, including his age;
(ii)	The best interests of the plaintiff as a child;
(iii)	The degree of the plaintiff’s participation in the offending; and
(iv)	The fact that the forensic analysis of his DNA profile sample had been exculpatory. 
23	Section 32(1) does not displace the ordinary process of statutory construction.  Rather, the Charter forms part of the context in which a statute is to be construed.  Section 32(1) ‘operates on constructional choices which the language of a statute permits’.  Section 32(1) does not permit departure from the ordinary meaning of the statutory provision.
24	The first, third and fourth matters which the plaintiff submits are mandatory relevant considerations incorporated by implication into s 464ZFB(2) are properly characterised as falling under the rubric of ‘all the circumstances’ of the application for retention of the plaintiff’s DNA.  As such, the Magistrate was required by the terms of s 464ZFB(2)(b) to take these three matters into account when assessing whether the making of a retention order was justified.  The second matter, which the plaintiff identifies as a mandatory relevant consideration, is the best interest of a child.  The fact that the plaintiff was a 17 year old child at the time of the hearing of the retention order application was a matter falling squarely within the circumstances of the case.  It was therefore a matter that the Magistrate was required to have regard to in determining whether he was justified in making a retention order.  However, there was no additional requirement arising under s 32(1) of the Charter to have regard to the best interest of the child as a mandatory relevant consideration.  
25	The first, third and fourth matters identified by the plaintiff were mandatory relevant considerations by reason of the express terms of s 464ZFB(2)(b).  They were mandatory relevant considerations because they were properly characterised as falling within the phrase ‘all the circumstances of the case’.  As such, these were matters that the Magistrate was required by the mandatory terms of s 464ZFB(2) to have regard to in reaching the requisite satisfaction as to whether or not a retention order was justified.  This reasoning applies with equal force to the fact that the plaintiff was a 17 year old child at the time of the hearing.
26	The retention order must be set aside.  The Magistrate failed to undertake the task required by s 464ZFB.  First, the Magistrate was required to identify all relevant circumstances bearing upon the question of whether a retention order should be made.  Second, the Magistrate was required to undertake an evaluative assessment of the circumstances both in favour and against the making of an order.  Third, having undertaken that assessment, an order should only have been made if the Magistrate was satisfied that the order was justified.
Ground 2
27	During the hearing on 25 November 2022 the prosecutor made the following submission:
Your Honour, that's quite correct that there was a preliminary report that analysed much of the biological material prior to the date of conviction and my understanding is also that that can and now has been disclosed. However, there are two pieces of evidence which were examined post-conviction. That is one of the victim's bra strap and then a pair of tracksuit pants with blood splatter. Both of those items have been examined, forensically examined, however the reports of that cannot be legitimately disclosed to the co-accused's legal representatives as there was no longer a retention order at that time, and no longer consent at that time. And so that report which is dated 14 July 2022 does not compare [MB’s] DNA to those two items. Sorry, the subsequent report on the 30th of September does not provide that comparison.
The DNA may go some way to eliminating or implicating [MB] in certain aspects of the offending and these are matters which the co-accused are entitled to know as it may go to their defence. The co-accused are both being committed for trial, the initial directions hearing is listed for 1 December and so at this stage the matter is still contested.
28	The prosecutor concluded her submissions by stated that, ‘in all the circumstances the applicant is of the view that the order is justified, given that it may still have a bearing on the trial of the co-accused’.
29	MB contends that the prosecutor erred in submitting that a retention order was necessary to allow forensic reports of a bra strap and tracksuit pants to be disclosed to the co-accused.  Ms Ruddle KC, who appeared with Mr Buchhorn for the second defendant, submitted that the prosecutor’s submission should be read in light of [49] of the affidavit filed on 12 September 2022 in support of the application for a retention order:
Ece EKEN at the Victoria Police Forensic Services Department (FSD) is in the process of completing her forensic statement of analysis of the above items.  The statement is required for the contested hearing of SIISII and LOLOGA on 2 November 2022. As [MB] has been found guilty of the Aggravated Home Invasion on 24 August 2022, an application to retain [MB’s] DNA is required.  In order for Ece EKEN to finalise and peer review DNA findings, a retention of [MB’s] DNA is required. 
30	Ms Ruddle submitted that [49] of the affidavit made clear that the retention order was necessary to permit forensic examination of the bra strap and the tracksuit pants.  Ms Ruddle submitted that the prosecutor’s submission that a retention order was necessary to permit disclosure was in fact a reference to the evidence at [49] of Senior Constable Pilati’s affidavit.  
31	There is a significant disconnect between the prosecutor’s submission that a retention order was necessary to permit disclosure of a report to the co-accused and the statement in [49] of Senior Constable Pilati’s affidavit that a retention order was necessary to allow for forensic examination of the bra strap and tracksuit pants to take place.  
32	Ms Ruddle submits that the Magistrate would have understood that the prosecutor was referring to [49] of the affidavit.  I reject this submission.  The prosecutor unequivocally stated that the bra strap and tracksuit pants had been forensically examined and that the retention order was necessary to allow for legitimate disclosure to the co-accused of the forensic report.  This submission was incorrect.  If the bra strap and tracksuit pants had been forensically examined, the prosecution was subject to a duty to disclose the report irrespective of whether a retention order was made.  
33	In his ex tempore reasons the Magistrate stated: ‘Having reviewed the affidavit, heard the submissions on behalf of the respondent, I am satisfied that the order is justified, and I do intend to make that order.  And I rely on the submissions made on the affidavit.’  The Magistrate explicitly relied upon the prosecutor’s erroneous submission in his reasons.  This error infected the Magistrate’s reasoning.  The Magistrate’s reliance upon the prosecutor’s erroneous submission supports a finding that the process of reasoning deployed by the Magistrate was erroneous and therefore legally unreasonable.  The error was material in the sense that, absent the Magistrate’s reliance on the prosecutor’s erroneous submission, it was possible that the Magistrate may have come to a different conclusion.  The Magistrate’s decision was legally unreasonable and therefore invalid.
34	In light of this conclusion, it is unnecessary to address the plaintiff’s alternative ground contending unreasonableness, namely, that it was legally unreasonable to conclude that the retention of the plaintiff’s DNA profile could have assisted the plaintiff’s co-accused in their defence.  The plaintiff submits that forensic analysis of the bra strap and tracksuit pants could not have been exculpatory of the accused because forensic examination of these items disclosed that the DNA of one of the accused (Siisii) was on the tracksuit pants and DNA of the other co-accused (Lologa) was on the bra strap.  
35	As I have concluded that the decision was legally unreasonable by reason of the Magistrate’s reliance upon the prosecutor’s erroneous submission, it is not necessary to address this argument.  However, were it necessary to do so, I would find that it was not legally unreasonable for the Magistrate to conclude that retention of the plaintiff’s DNA sample may have assisted the co-accuseds’ defence.  I accept Ms Ruddle’s submission that any DNA evidence which may have called into question the accounts given by witnesses to the home invasion undertaken by MB and his co-accused may have assisted the co-accused in their defence.  
Ground 3:  Charter unlawfulness
36	The plaintiff contends that by making the retention order the Children’s Court acted unlawfully under s 38(1) of the Charter by failing to give proper consideration to and acting incompatibly with MB’s right to privacy under s 13(a) of the Charter and his right to such protection as is in his best interest as a child under s 17(2) of the Charter.  Sections 13, 17 and 38 of the Charter are as follows:
13 Privacy and reputation 
A person has the right— 
(a) not to have that person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
		… 
17 Protection of families and children 
(2) Every child has the right, without discrimination, to such protection as is in the child's best interests and is needed by the child by reason of being a child.
…
38 Conduct of public authorities 
(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. 
(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision. 
(3) This section does not apply to an act or decision of a private nature.
37	The obligation under s 38(1) applies only to ‘public authorities’ as defined in s 4(1) of the Charter.  Pursuant to s 4(1)(j), a ‘public authority’ does not include a court or tribunal except where it is acting in an administrative capacity.  When the Children’s Court makes a retention order under s 464ZFB(1) it does not determine any existing rights or obligations.  Rather, it creates new rights and obligations.  It therefore acts in an administrative rather than judicial capacity.
38	Section 38(2) provides that s 38(1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.  Section 464ZFB(2)(b) requires the Children’s Court to conduct an evaluative assessment to determine whether, in all the circumstances of the case, the making of a retention order is justified.  Section 38(2) will not apply if a public authority has a reasonable choice in how it acts or has the option of making different decisions available to it.  Section 464ZFB(2) does not require the Court to reach a particular decision or to act inconsistently with human rights.  Consequently, s 38(2) does not apply so as to disallow the operation of s 38(1).  
39	In Yarran v Magistrates’ Court John Dixon J considered s 464T(3) of the Crimes Act, which provides that the Magistrates’ Court may make an order directing a ‘relevant suspect’ to undergo a compulsory proceeding, such as the taking of a saliva sample, if satisfied of a number of matters, including that ‘in all the circumstances, the making of the order is justified’.  John Dixon J concluded:
(a)	The legislature had substantially codified how a Magistrate gives proper consideration when determining whether to make an order under s 464T, and had struck a balance between the suspect’s right to silence and the public’s interest in the effective investigation of a serious crime;
(b)	On the proper construction of s 464T, all of the statutory criteria was satisfied and the plaintiff had not identified any relevant material that was not considered, or irrelevant material that was considered; and
(c)	On its proper construction, s 464T did not permit the Magistrate to take into account whether the decision would interfere with the plaintiff’s Charter rights and, as a result, s 38(2) applied so as to disallow the operation of s 38(1).
40	Ms Orr KC appeared with Mr Farhall for the Attorney-General who intervened in the proceeding pursuant to s34 of the Charter. Ms Orr submitted that Dixon J’s finding that s 38(2) applied to s 464T(3) was plainly wrong and, to the extent that the judgment was relevant to the present proceeding, should not be followed.  Ms Orr submitted that Dixon J’s reasoning was erroneous because it made no reference to the specific statutory requirement for the Court to be satisfied that ‘in all the circumstances, the making of the order [was] justified’.
41	It is unnecessary to express any concluded view as to whether Dixon J’s finding in respect of the application of s 38(2) of the Charter was plainly wrong.  The provisions of the Crimes Act considered by Dixon J are readily distinguishable from s 464ZFB(2).  Section 464ZFB(2) is concerned with the retention of a DNA profile sample after a finding of guilt, as distinct from the taking of a sample from a suspect as part of an investigation process.  Further, it applies to children rather than adults.  Yarran is not authority for the proposition that s 464ZFB did not permit the Magistrate to take into account whether the decision to make a retention order would interfere with the plaintiff’s Charter rights with the consequence that s 38(2) applied to disallow the operation of s 38(1).
The obligation to give proper consideration
42	Section 38(1) of the Charter has both a procedural and substantive limb.  A public authority must comply with both these limbs.  Compliance with the procedural limb of s 38(1) requires the public authority to identify and give consideration to a relevant human right.  The plaintiff submits that two human rights are engaged: ss 17(2) and 13(a).
43	Section 17(2) provides that every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child.  Section 17(2) is modelled on Article 24 of the International Covenant on Civil and Political Rights which relevantly provides that ‘every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.’
44	I accept Ms Orr’s submission that MB’s right under s 17(2) was engaged by the application for an order under s 464ZFB(1), because by making that application the police sought an order which would affect MB’s entitlement to the protection of a particular ‘special measure’ for children contained in s 464ZFC.  That provision is entitled ‘Destruction of information following finding of guilt’ etc.  Its affect is that if no application for a retention order is made within the prescribed period following the finding of guilty against a child, or a court refuses to make a retention order, the Chief Commissioner of Police must destroy any DNA profile sample taken from the child (and any related material and information) without delay.  It is an offence to knowingly fail to destroy, or knowingly use or cause or permit to be used, a sample that is required to be destroyed.
45	These provisions can be contrasted with those which regulate DNA sample profiles taken from an adult following a finding of guilt.  Pursuant to s 464ZFB(1AA), where the DNA profile sample was taken at a time when the person was of or above the age of 18 years, the sample taken and any related material and information may be retained indefinitely following the finding of guilt.
46	When s 464ZFC was inserted into the Crimes Act by the Crimes Amendment (Investigative Powers) Act 2013 the Attorney-General described the distinction for dealing with DNA sample profiles taken from adults and children as being based on recognition of ‘the vulnerability of children, particularly in the context of the legal system’.
47	Where the Children’s Court hears an application for an order that will displace the ‘special measure’ afforded to a child by s 464ZFC, the child’s right under s 17(2) will be engaged, with the result that the Children’s Court is required, by the procedural limb of s 38(1), to give proper consideration to that right before making the order sought.
48	Section 13(a) of the Charter provides that a person has the right ‘not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.’  An unlawful interference with privacy is one that infringes an applicable law.  I have upheld Grounds 1 and 2 of the plaintiff’s challenge to the validity of the retention order.  The retention order was not authorised by s 464ZFB(1) and therefore constituted an unlawful interference with the plaintiff’s privacy.  It follows that MB’s right to privacy was engaged for the purposes of s 38(1).
49	The substantive limb of s 38(1) ordinarily requires consideration of whether Charter rights have been engaged, whether those rights have been limited, and if so, whether any limitation is lawful, reasonable and justified in accordance with s 7(2) of the Charter.  Any application before the Children’s Court for a retention order under s 464ZFB(1) will engage the s 17(2) right conferred on a child who is the subject of the application.  The reason for this is that every application under s 464ZFB(1) will affect the prima facie right of a child under s 464ZFC(1) to have a DNA sample destroyed.  It follows that every application for the retention of a child’s DNA will engage the s 17(2) right and will entail a limitation of the child’s prima facie right under s 464ZFC(1) to have their DNA destroyed.  Further, any application for retention of a child’s DNA will require the Children’s Court to determine whether the limitation on the prima facie right of a child to have their DNA sample destroyed is lawful, reasonable and justified in accordance with s 7(2) of the Charter.
50	Section 7(2) of the Charter provides as follows:
(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve
51	Section 7(2) prescribes two criteria.  First, whether the relevant limitation is ‘under law’.  Second, whether the limitation can be demonstrably justified taking into account ‘all relevant factors’ including those prescribed by s 7(2)(a)(e).  This entails a proportionality analysis which requires any limitation on rights to be proportional to the purpose that the limitation seeks to achieve.
52	The order for the retention of MB’s DNA was not made ‘under law’.  The order was not authorised by s 464ZFB(1).  It is therefore unnecessary to consider whether the limitation on MB’s prima facie right to have his DNA sample destroyed is demonstrably justified taking into account all relevant factors.
53	The Children’s Court did not comply with the substantive limb of s 38(1).  The Magistrate did not give any consideration to whether MB’s s 17(2) right had been engaged and whether these rights would be limited by the making of a retention order.  Further, the Magistrate did not give any consideration to whether the limitation on MB’s rights under s 464ZFC(1) were lawful, reasonable and justified in accordance with s 7(2).  The retention order was unlawful by reason of non-compliance with s 38(1) read in conjunction with s 17(2).  
54	The retention order interfered with the plaintiff’s right to privacy.  The order was not authorised by s 464ZFB(1) and was unlawful.  The Magistrate did not give any consideration to whether the limitation on MB’s right to privacy flowing from the making of the retention order was reasonable and justified in accordance with s 7(2) of the Charter.  The retention order was unlawful by reason of non-compliance with s 38(1) read in conjunction with s 13(a).  
Conclusion
55	MB has made out each of the three grounds on which he challenges the order for the retention of his DNA sample.  The Court will order that the order of the Children’s Court made on 25 November 2022 in case number N1050560 be quashed.  The plaintiff is also entitled to a declaration that the order was invalid and of no effect.  
56	The effect of an order quashing the retention order is that the second defendant’s application for an order under s 464ZFB(1) remains on foot.  It is common ground that although MB is now 18 years of age the Children’s Court retains jurisdiction to hear the application under s 464ZFB(1).  The Children’s Court was subject to a duty to make a decision with respect to MB’s rights.  The retention order was invalid and of no legal effect, with the result that the duty to make a decision in respect of the s 464ZFB(1) application remains unperformed. In these circumstances the appropriate course is to remit the proceeding to the Children’s Court for rehearing. 
57	Finally, it is appropriate to record that the Magistrate made the retention order on 25 November 2022 without the benefit of any submissions regarding the application of the Charter, let alone potential unlawfulness of any order by reason of non-compliance with s 38(1) read in conjunction with s 13(a), s 17(2) and s 7(2).  Unlike the Magistrate, I have had the benefit of detailed and ably presented submissions in respect of the application of the Charter.
58	The Court shall make the following orders: 
1.	The time for the commencement of the proceeding is extended to 10 February 2023. 
2.	The order made by the Children’s Court in Case No. N1050560 is quashed. 
3.	The application pursuant to s 464ZFB(1) be remitted to the Children’s Court of Victoria for rehearing.
59	The Court will make a declaration that the Order made by the Children’s Court of Victoria on 25 November 2022 that any DNA sample taken from MB and any related material and information be retrieved pursuant to s 464ZFB(1) of the Crimes Act 1958 is invalid and of no effect. 
60	I shall provide the parties with an opportunity to make submissions as to the costs of the proceeding. My provisional view is that the second defendant should pay the plaintiff’s cost on standard basis to be taxed in default of agreement. 
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