An ‘Absolute Dog Act’: Queensland Government Suspends State’s Human Rights Act

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Annastacia Palaszczuk

In a move described by the manager of opposition business, Andrew Powell, as a “disgraceful abuse of parliamentary process” and the “biggest affront to democracy in Queensland’s history”, the Queensland government has rushed through legislation to ‘suspend’ its Human Rights Act of 2019, ostensibly in order tomake it lawful to lock children up in police watch houses, potentially together with adults.

In a speech before parliament, Greens MP Michael Berkman slammed the government for giving the House just ‘five minutes notice’ of the introduction of the legislation.

“To call this disgraceful is an understatement,” he told the House. 

“It is an absolute dog act for the government to introduce amendments like this with no prior warning.”

“What we’re actually going to see is some of the most vulnerable people in our community stripped of their rights under the Human Rights Act,” Berkman said.

“The government was unlawfully detaining these children. And so they’re embarrassed about it. Their response is to strip those kids of their human rights.”

The government’s police minister, Mark Ryan, introduced the legislation, which removes all protections for children being held on remand. 

The move is being explained by the government as necessary to “avoid any potential legal challenges”.

But there has been a chorus of criticism from not only politicians but those who deal with troubled children, who have called it inhumane and a contravention of laws relating to the rights of children,  and fear it will ultimately lead to vulnerable youths being drawn further into the cycle of criminality.

Locking up kids with adult offenders

There are currently more than 45 children being detained in police watch houses in Queensland, who are exposed to adults charged with serious criminal offences including sexual offences against children.

It’s reported that some have been there for as long as 5 or 6 weeks, in cells that are designed to hold adults for less than 24 hours. 

Lights in these cells are on 24 hours a day, children are often exposed to adult detainees, there is a lack of appropriate facilities and privacy for girls, as well as a lack of access to basic amenities such as showers and clean clothes. 

Much of the problem stems back to 2021, when the Queensland Government passed laws proudly called “the toughest new youth justice laws in the country”. 

The laws created a presumption against bail for juveniles accused of committing a serious crime while already on bail for another serious offence. Under the new laws, youth offenders now must “show cause” (prove) that they are not an unacceptable risk and should be granted bail.

Eroding the presumption of innocence

Earlier this year the Queensland Government further amended the laws, making breach of bail a crime for youths suspected of committing offences. 

Since the laws were enacted, more than 20 organisations including peak legal bodies, wrote submissions warning the measures were ‘short-sighted’ and would only further overload the existing detention centre facilities, which had already been struggling with capacity.  

Ultimately, this proved to be true, and with detention centres with no available spaces, youth suspects have instead been placed in custody in police watch houses. 

Ditching the ‘inconvenient’ Human rights Act 

Initially, concerns were raised that the State Government was breaching its own Human Rights charter by continuing with the practice of keeping children in police watch houses when there was nowhere else for them to go. These concerns were ignored. 

Then the legality of locking up children in police watch houses was called into question in a number of lawsuits, in particular a recent supreme court challenge which argued the detention of three children in police watch houses for extended periods was unlawful.

The court ordered the urgent transfer of the three children from watch houses, after the government failed to produce the appropriate court orders, but did not address the legality of the broader issue. 

However, as a result of that court case, the solicitor general provided advice to the Queensland Government that  its interpretation of the Youth Justice Act over the past 30 years was “likely incorrect”. 

The legal implications of this, over three decades, could be widespread and substantial.

So in order to shut down further legal problems  – at least for now –  the Queensland Government made the extraordinary decision to suspend its Human Rights Act. 

“Emergency Law” 

It’s incredible that such a sly tactic can actually be successfully achieved in a healthy functioning democracy.

However, the government introduced the suspension as an “emergency law”, which if you’ll remember from all of the “emergency laws” introduced during the pandemic, can be introduced with limited debate and no oversight from the parliamentary committee, before being quietly extended.

Indeed, such laws are not subject to proper due process, let alone community consultation and public scrutiny. 

The government is saying the suspension of the Human Rights Act is only temporary, and it will be reinstated in 2026 when newly built youth detention centres are operational. 

But even so, the move sets an incredibly dangerous precedent – one we should all be concerned about. 

‘Farm animals have better protections’ than youths

In the meantime, vulnerable children are at the mercy of an uncaring government which has long been criticised for failing to implement early intervention strategies or invest in alternatives to youth detention, and experts say there are plenty of options, yet the government seems to lack the political will to deal with its youth crime problem in any way that is not punitive. 

Human Rights Commissioner blindsided

Queensland Human Right’s Commissioner, Scott McDougall, was blinded by the move to suspend the Human Rights Act, – he has since said that “farm animals have better protections” than youth offenders in Queensland. 

Placing children in detention also tends to increase the risk of re-offending long term and does nothing to help young people to rehabilitate and move forward productively with their lives, But that’s a separate issue – of more concern is the fact that in a democracy, a government can get away with such an incredibly sly move, in order to enact legislation that is seen as particularly damaging. 

We must also take into consideration the fact that some of these children are as young as 10 years old – this is the age of criminal culpability in Queensland. 

The ‘youth justice’ crisis in Queensland has been making headlines for awhile and police and the government keep trotting out justification for tough new laws as “for the protection of our communities”. 

And while ‘safer streets and neighbourhoods’ makes good spin that’s likely to resonate with the voting public (Queensland elections are scheduled for next year) – it does absolutely nothing to solve the problem long term, and in fact will only cause more trauma and psychological harm to the children who are already in trouble with the law. 

And, as we all know, many of those children already come from disadvantaged backgrounds, a high percentage are indigenous and will be disproportionately affected. 

Experts have said time and again that the youth justice laws will do nothing more than create a funnel to the adult criminal justice system. 

Further, the situation is completely contradictory to the State’s 2019 youth justice strategy, which is still formal policy in Queensland, which aimed to create policies and strategies to ensure that children are kept out of custody. 

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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