Using Queensland’s own laws to highlight the government’s youth justice failings does not make judges soft | Ben Smee

The judiciary has exposed how children are being treated and yet it is still blamed for the recidivism that occurs as a result

Queensland has set new records for child imprisonment. More kids than ever before are in the state’s youth detention system, with prisons so crowded that up to 100 a night are being housed in adult police watch houses.

Yet of course the prevailing community view remains that the courts are too soft on crime.

The tired old myth about soft judges is littered through submissions to the Queensland government’s new youth justice laws, which experts say will result in the detention of even more children for breaching their bail.

One rails about “judges with extreme views”. Another says “often there is no sentence imposed for youth crimes”.

It’s little wonder these views prevail when politicians, like the deputy premier, Steven Miles, accuse courts of “media stunts” and claim the community is being “held to ransom by rogue courts and rogue justices”.

Miles’s comments were in reference to a decision by a Townsville magistrate to release 13 children being held in unsuitable conditions in the city’s adult police watch house.

The police minister, Mark Ryan, implied these bail decisions were unlawful and that police would lodge appeals. But in the end, none ever proceeded to hearing.

Police did lodge appeals in two of the 13 cases, but neither made it to the supreme court. In one, the child pleaded guilty and was sentenced, meaning a bail application was no longer relevant. In the other case, the child was rearrested before the hearing.

It is worth pointing out that police have not proceeded with appeals in the other 11 cases. So presumably there is no longer any contention by police or the state government that releasing those children from watch houses – where their treatment is subject to human rights concerns – was not a lawful or reasonable decision.

System under pressure

Legal experts say Labor’s 2019 changes to bail laws led to the massive increase in the youth prison population. The government makes the same point proudly. Almost 90% of incarcerated children are on remand, under laws that removed the presumption against bail.

Now that more children are imprisoned, prisons and watch houses have become places where basic human rights are being violated. And out in the community, recidivism rates have increased to the extent many believe there is a new crime “crisis”.

But in the void of any leadership from the state – which has shown no apparent urgency to remove kids from watch houses or improve conditions in detention – some judges and magistrates have stepped up.

They do so at risk of being attacked using the same old ivory tower tropes and being called “soft” on youth crime. In reality, these judgments have laid blame where it belongs – at the feet of the state government.

In the case of TA, a 13-year-old boy with developmental disorders who was imprisoned in effective solitary confinement for months, children’s court judge Tracy Fantin said: “If you treat a child like an animal, it is unsurprising that they may behave like an animal.”

In other recent cases, children’s court magistrates have refused to further sentence children for assaults inside detention centres, citing the way they have been kept confined to cells for extended periods due to chronic staff shortages.

Children’s court magistrate Eoin Mac Giolla Ri granted bail to a teenage girl this year, saying he was “conscious” she would otherwise end up in an adult police watch house.

In January in a separate case, Mac Giolla Ri expressed concern about children being held in watch houses where “adult detainees are often drunk, abusive, psychotic or suicidal”.

What these judges and magistrates have done is not act as activists. They’ve passed down sentences and decisions under Labor’s own laws, which demand that when children are imprisoned, the conditions are appropriate.

The government has not successfully appealed any one of those decisions.

In making clear they will take human rights concerns – and the treatment of children in detention – into account, the judiciary has exposed a fundamental breakdown in the system.

Their judgments expose how children are being treated in circumstances described as “cruel, inappropriate and [serving] no rehabilitative effect”; and yet the judiciary is still inexplicably blamed for the recidivism that occurs as a result.

The principle of the separation of powers is based on the idea that each branch of government should keep a check on the actions of others.

Over the past weeks, the Palaszczuk government has made clear it listens to the voices of Facebook anti-crime protesters but not the experts, academics and others who have warned that punitive measures will only make matters worse.

Judges are rightly calling out the government’s failings.

“Your period in detention will have achieved little or nothing to protect the community from your future offending,” Fantin said during the sentencing of TA.

“Indeed, it may well have increased the risk of further offending by you and the state of Queensland must bear responsibility for that.”


Ben Smee

The GuardianTramp

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