The Queensland human rights commissioner says he is “deeply concerned” at the state’s plan to charge children with criminal offences for breaching their bail conditions – the first time the Labor government has sought to override protections enshrined in its own Human Rights Act.
Proposed youth justice legislation, which would make breaches of bail an offence for children, was tabled in parliament on Monday by the police minister, Mark Ryan.
The new laws were accompanied by a statement that acknowledged they were not compatible with human rights.
The Human Rights Act – a landmark piece of legislation passed with fanfare by the Palaszczuk government in 2019 – gives parliament the ability to make an “override declaration”, which allows laws to take effect if they are at odds with human rights provisions.
Such declarations should “only be made in exceptional circumstances”, such as war, a state of emergency or “an exceptional crisis” constituting a threat to public health, safety or order.
The state’s human rights commissioner, Scott McDougall, said in a statement on Tuesday evening that he was alarmed by the government’s actions, including that it would remove human rights protections for the first time. He said the bill had been brought without proper consultation.
“It is deeply concerning that the government has sought to exclude the Human Rights Act from the operation of new provisions of the Youth Justice Act, because the government accepts that they are incompatible with human rights,” he said.
“The government must consult widely and properly consider evidence-based solutions rather than rashly overriding human rights protections. Removing the rights of children ultimately does not uphold the rights of victims of crime.
“This is yet another piecemeal reaction to youth crime and with no overarching coordinated multi-agency plan to meaningfully address the causes of youth offending.”
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McDougall raised concern that the government was implementing a policy that experts and others say would result in “an explosion” of the population in Queensland’s buckling youth detention system, but contained no plan to get children out of police watch houses, where about 80 are currently being detained.
He said the government required an “urgent” plan to get kids out of watch houses.
“I am deeply concerned about the lack of any plan to immediately cease the practice of prolonged watch house detention,” McDougall said.
“In Queensland, we have become desensitised to the practice of holding children in small police cells for days and weeks at a time. We have heard troubling accounts of up to 11 children held for long periods in a single cell with only one toilet.
“This would be unacceptable in any jurisdiction, but for it to occur in Australia’s newest human rights jurisdiction is particularly distressing.”
McDougall said the government’s policies risk normalising the inhumane treatment of children, by exposing them to a psychological and physical harm.
“The proposals will inevitably lead to greater pressure on detention centres and threaten to normalise the inhumane treatment of children by exposing them to an unacceptable risk of psychological and physical harm,” he said.
“There is no evidence that the amendments will work to improve community safety in the immediate or longer term.”
On Tuesday, Ryan tabled a statement that said the government “accepts that these provisions [in the bill] are incompatible with human rights”.
“Therefore, in this exceptional case, the [Human Rights Act] is being overridden and its application entirely excluded from the operation of these new provisions to protect community safety.”
Ryan said that the amendment was “inconsistent with international standards about the best interests of the child”.
He said this was because the amendment could make it more likely that children will be detained pending trial, despite standards by the UN that it “shall be used only as a measure of last resort”.
The measures would also breach the UN’s standards that detention “before trial shall be avoided to the extent possible and limited to exceptional circumstances” and “all efforts shall be made to apply alternative measures”, he wrote.
