Balancing children's wellbeing and community safety: Overriding Queensland's Human Rights Act

Danielle Pedersen

Human Rights Acts in Australia can be overridden by Parliament in circumstances where a new Act or provision is incompatible with one or more human rights. But this is not without controversy.

On 16 March 2023, the Queensland Parliament passed the Strengthening Community Safety Bill 2023 which included a new section 29(3) and section 50 under the Bail Act 1980 (Qld) to allow children who breach bail conditions to be charged with the same offence as an adult, among other changes.

This is the first time the Queensland government has overridden its own Human Rights Act since the law commenced on 1 January 2020. The Human Rights Act (2019) is the most recent human rights act in Australia, following the human rights charters established in ACT in 2004 and in Victoria in 2006. Australia is one of the only liberal democracies in the world that does not have a human rights act at the national level.

What problem is the amendment addressing?

The Queensland Government has overridden its human rights laws in response to a perceived escalation in youth crime in Queensland — under the pretext of community safety.

Although the most recently available crime data suggests a decline in youth crime across Australia over the past 15 to 20 years, there is a small minority of about one in 10 offenders that are committing more and more serious, violent offences.

The changes, which also include putting GPS trackers on offenders as young as 15, a declaration of ‘serious repeat offenders’ and expanding the number of offences with a presumption against bail, have prompted fears amongst human rights experts that it will worsen the already dire state of the youth detention system in Queensland. In response to the changes, Queensland Human Rights Commissioner, Scott McDougall, stated:

The Government must consult widely, and properly consider evidence-based solutions rather than rashly overriding human rights protections.

The measures introduced are predicated on a flawed perception that recidivist children will respond positively to punitive measures. As countless reviews have found, including from former Police Commissioner Bob Atkinson, such measures do not work to reduce crime and therefore do not protect the rights of victims.

Removing the rights of children ultimately does not uphold the rights of victims of crime.

A coalition of more than 50 experts and organisations have called on the government and opposition not to politicise the issue and to adopt a smarter, not a tougher approach that prioritises early intervention and rehabilitation.

Overriding the Human Rights Act – is this possible?

The Queensland Human Rights Act allows Parliament to make laws that are incompatible with human rights by ‘override declaration’ under section 43 of the Human Rights Act. It is intended that such declarations ‘only be made in exceptional circumstances’, which the section describes as ‘war, a state or emergency or an exceptional crisis situation constituting a threat to public safety, health or order’.

Section 29(3) was inserted into the Bail Act 1980 (Qld) to state that section 29 of that Act (which creates an offence to breach conditions of bail) has effect in relation to a child despite the section being incompatible with human rights and anything else in the Human Rights Act 2019 (Qld).

Under section 38 of the Human Rights Act, the member introducing a Bill must prepare a statement of compatibility for the Bill with the Act. The statement must explain whether the Bill is ‘compatible with human rights’ and how, and how, and if part of it is not compatible with human rights, the nature and extent of the incompatibility. If the Bill contains an ‘override declaration’, the member introducing the Bill must provide a statement as to the exceptional circumstances applicable (s 44).

Queensland Police and Corrective Services Minister, Mark Ryan, published a statement about exceptional circumstances on 21 February 2023 accepting that the changes were ‘incompatible with human rights’ and that the Act ‘is being overridden and its application is entirely excluded from the operation of these new provisions to protect community safety’.

What human rights are affected?

The Queensland Human Rights Act contains specific protections for children in the criminal process, including section 33(3) which states that ‘[a] child who has been convicted of an offence must be treated in a way that is appropriate for the child’s age’.

What is the impact of the changes?

Experts say there is zero evidence to support the changes and the changes are inconsistent with the international standards on the best interests of the child. They argue the changes will disproportionally affect Aboriginal and Torres Strait Islander youths.

The turnaround of the Strengthening Community Safety Bill 2023 was approximately one month since introduction to passing, which is a significantly short period given the severity of overriding the Human Rights Act. The lack of consultation informing the proposed changes has also prompted concern from the Queensland Human Rights Commissioner, Scott McDougall:

There has been a lack of meaningful engagement with the community particularly victims, young people, legal experts and key stakeholders such as Aboriginal and Torres Strait Islander organisations and communities. The community is ready to be part of finding evidence-based solutions to these complex issues.

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.

The Queensland Government needs to meaningfully engage in long-term solutions that balance the wellbeing of children and community safety concerns, instead of making rash changes which override human rights without careful consideration and sufficient community engagement.

Danielle Pedersen was an intern with the Australian Journal of Human Rights in Term 1, 2023.