The Queensland government’s appeal against the release of several children detained in police watch houses looms as a test for the state’s controversial youth bail laws and its Human Rights Act, legal experts say.
Last week Townsville children’s court released 13 children being held on remand in the city’s police watch house. Some had been in the adult holding cells for an extended period due to overcrowding in the youth detention system.
Appeals against some of those bail decisions will be heard by Justice David North in the supreme court in Townsville over the next week.
At issue is an apparent conflict between the Palaszczuk government’s bail rules that have overloaded the youth justice system, the underlying principles of the Youth Justice Act and Queensland’s landmark Human Rights Act.
In 2019 the state introduced a presumption against bail into the Youth Justice Act: the legislation states that police or courts “must” keep a child in custody if “there is an unacceptable risk that the child will commit an offence that endangers the safety of the community or … a person” and that risk cannot be mitigated via bail conditions.
At the same time, the Youth Justice Act includes a number of “guiding principles”, including that a child should be held in custody “only as a last resort and for the least time that is justified”.
It also says that a child detained in custody “should only be held in a facility suitable for children”.
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Human rights concerns have been raised about the conditions in police watch houses, which are being used to “warehouse” children while detention centres are at capacity. This week there were 79 children in adult police holding cells, most on remand, including some who had been held there for about a month.
Conditions in watch houses include exposure of children to adult detainees, a lack of appropriate facilities for girls, lack of access to showers or clean clothes, and young people sleeping on yoga mats in shower stalls.
A report published by the Queensland Family and Child Commission last November found Aboriginal and Torres Strait Islander children had been imprisoned in Queensland watch houses for up to 35 days. One teenage boy said he was forced to sleep on a block with no cushions or proper bedding.
Tamara Walsh, a human rights law professor at the University of Queensland, said there was little case law or precedent in this area, because lawyers mostly focused on the immediate welfare of children in the system.
Walsh said the police appeals against bail in the Townsville cases could result in an important precedent for future bail decisions in light of human rights concerns about watch houses.
She said Queensland’s Human Rights Act required courts and tribunals to interpret legislation “in a way that is compatible with human rights”.
“I do think the Human Rights Act is an untapped resource in this space,” Walsh said. “We’re starting to see it used in adult corrections decisions.
“It’s not a rights-compatible decision to hold a child in a watch house. There’s no doubt that watch houses are a completely inappropriate environment for children and really quite horrific.
“As soon as human rights considerations come into the equation it would be difficult to hold these kids in custody.”
The Queensland police minister, Mark Ryan, said last week he believed the decisions to release children from custody – if justified by capacity constraints within the youth detention system – were “unlawful”.
“The appeal process has to run its course but I’m hopeful, I’m hopeful the supreme court will do its job, follow the law, and ensure that community safety is prioritised,” Ryan said.
“There are many places where people can be detained … the law is that if someone needs to be detained then they have to be detained. The state of Queensland will find a place to detain them. If they need to be detained in a watch house then that’s where they’ll be detained.”
The appeals were due to be mentioned in the supreme court in Townsville on Tuesday, with a hearing likely to take place early next week.
In addition to the legal implications, the case carries political significance for the Palaszczuk government.
Any decision to uphold the children’s court’s bail decisions would be spun by community critics and the Liberal-National party opposition as evidence Labor had bungled its “tough” bail laws.
The case will also come to court in the shadow of astounding attacks by Labor politicians on the judiciary. The deputy premier, Steven Miles, was criticised by legal figures after he last week said that the bail of children from watch houses was “a media stunt … putting the community of Townsville in danger”.
“We cannot allow the safety of Townsville residents to be held to ransom by rogue courts and rogue justices,” he said.
The president of the Bar Association of Queensland, Damien O’Brien, said magistrates were required to apply “often complex laws” to the particular facts of a case before them.
“It does not involve making a decision according to what the government of the day wants or what the loudest voices call for,” O’Brien said. “It is an extremely difficult job that they do every day extremely well without fanfare.”