Zhong Guan
Despite ongoing calls for reform, Australia is the only liberal democracy that lacks a national Human Rights Act. The Australian Capital Territoryand Victoria both have human rights acts and in February 2019, Queensland joined this small number of states and territories, and enacted the Human Rights Act 2019 (Qld) (‘Act’). It was described by the government as ‘modern, fair and responsive’ in providing a new level of equality and protection for the vulnerable. Under section 43, the Act can be overridden by Parliament where a new provision is incompatible with the human right(s) contained therein. Such ‘override declarations’ are intended to ‘only be made in exceptional circumstances’. The Queensland Parliament voted to override the Act for the second time this year, in order to enable children to continue to be detained in police watch-houses.
Australia has ratified the United Nations Convention on the Rights of Child (‘UNCRC’). Relevantly, Article 37 provides that the detention of children shall only be a last resort and every detained child shall be separated from adults. Australia has also ratified the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, which when read together extends children’s rights from parental autonomy.
Under the Act, ‘an accused child who is detained must be segregated from all detained adults’ and a convicted child ‘must be treated in a way that is appropriate for the child’s age’. On 25 August 2023, the Queensland Parliament overrode the Act by passing the Child Protection (Offender Reporting and Offender Prohibition Order) and Other Legislation Amendment Bill 2022 (‘Bill’), which allowed for children to be imprisoned in police ‘watch-houses’ intended for adult occupancy. Police Minister Mark Ryan described the override as temporary until 31 December 2026 to address ‘immediate capacity issues’ in youth correctional facilities.
The Bill was passed in response to a Queensland Supreme Court decision, which considered whether the detention of three children in watch-houses for extended periods was unlawful. Although the Court ordered the children’s urgent transfer from the watch-houses, there was no ruling made on the legality of their detention. On advice from the Queensland Solicitor-General, the government could either remove children from watch-houses, override the law or pursue alternative options such as stopping arrests of Indigenous children on status-based offences. Seeking to avoid any potential legal challenges, the government’s decision to pass the Bill and override its own Human Rights Act was described as a ‘disgraceful abuse of the parliamentary process’ and the ‘biggest affront to democracy in Queensland’s history’.
There were more than 180 signatories in an open letter to the Premier in light of the override, which alleged that the changes in law ‘undeniably violate children’s rights and disproportionately affects Indigenous children’. There was uniform criticism that this may lead to vulnerable youths being drawn into a violent cycle of criminality. Watch-houses are holding cells designed to detain people overnight, and do not offer youth detention centre rehabilitation facilities such as education programs and cultural support, which breaches article 18 of the UN.
The Queensland Human Rights Commissioner Scott McDougall warned of the ‘irreversible harm’ being caused to children detained in watch-houses, which he described as ‘concrete boxes’. Whistleblowers allege that there were incidents of adult prisoners exposing their genitals and imitating sexual acts to children of the opposite sex who shared the same holding cell. This is in breach of the recommendation that juveniles be separated from adults unless under controlled circumstances.
Former Queensland Court of Appeal President Margaret McMurdo explained that ‘watch-houses are certainly not suitable’ to detain children. Having children spend weeks with adults, some charged with serious crimes such as sexual offences, in an environment without sunlight and exercise shows the youth justice system ‘in crisis’.
As of 15 November 2022, more than 90% of Queensland’s detained children are awaiting trial. The UN states that detention before trial shall be avoided to the extent possible, with all efforts to be made to apply alternative measures. Children who are deprived of their liberty experience fear, isolation, trauma and harm, which is exacerbated when they come from disadvantaged backgrounds.
The Queensland incarceration rate for Indigenous children is 33 times more than the rate for non-Indigenous children. More than two-thirds of children that spent nights in custody in 2021–2022 were Indigenous. This is despite Indigenous children representing less than 10% of Queensland’s overall children population. It has been ironically argued that the override is state-inflicted violence, as it has made it it easier to incarcerate Indigenous children, with 95% of children on an internal police ‘blacklist’ being of Indigenous origin.
Overriding the Act for the second time in one year demonstrates the Queensland Government’s unease with its statutory human rights obligations. This approach inflicts unquestionable harm upon Queensland’s children, especially those from marginalised backgrounds detained in unsuitable environments. The Queensland Government should act on the UNCRC’s 2019 Concluding Observations recommendation to ‘better implement the principle of detention as a last resort’ and ensure non-custodial options are available.
Zhong Guan was an intern with the Australian Journal of Human Rights in Term 3, 2023.