On 24 August 2023, the Queensland government passed an ‘urgent’ amendment to the Youth Justice Act 1992, making it lawful for young people who have been refused bail to be detained in police watch-houses indefinitely. The change has caused widespread controversy and condemnation from civil libertarians. This page outlines the changes and the reactions to them.
How has the Youth Justice Act changed?
The Amendment alters section 56 of the Youth Justice Act 1992, which deals with children who are not granted bail.
Under the old version of the Act, young people who were remanded in detention had to be delivered from police custody into the custody of the Chief Executive of Corrective Services as soon as reasonably practicable.
Under the changes, the Act now states that the Chief Executive must notify the police of the date on which the delivery of a young person into the Chief Executive’s custody will be accepted. The police must deliver the young person into the Chief Executive’s custody as soon as reasonably practicable after that date.
The Chief Executive is to decide on the date that a child can be delivered into their custody based on the young person’s needs having regard to:
- Their age and sex;
- Their self-harm and suicide risk;
- Their cultural background;
- Any medical conditions they have;
- Their physical and mental health;
- Their cognitive capacity;
- Any substance misuse or withdrawal issues they have;
- The location and date of their next court appearance;
- Any other issue that may affect their health or welfare in a watchhouse environment;
- Any other issue that may affect their health or wellbeing while being transported between a watchhouse and a detention centre.
The Chief Executive must also consider:
- relative needs of any other young people being held in police custody in relation to the above considerations;
- the impact of the child’s delivery on the chief executive’s ability to fulfil their duties as an employer and the police commissioner’s ability to fulfil their duties in relation to the security and management of watch-houses and the safety and wellbeing of people detained in them.
Implications of the changes
Under the old Act, it was not legal to hold children at watchhouses for extended periods. Young people who had been refused bail had to be transferred to a youth detention centre as soon as possible.
Under the new provision, young people will be able to be held in watch-houses indefinitely. However, it is still not lawful under the Youth Justice Act for a young person to be held in an adult prison.
What is the Human Rights Act?
Queensland is one of three Australian jurisdictions to have passed human rights legislation, along with Victoria and the ACT. These are ordinary acts of parliament and not constitutionally entrenched bills of rights. The state and territory human rights legislation is used to promote the consideration of human rights in government decision-making.
Australia does not have a federal human rights act or bill of rights.
The Queensland Human Rights Act 2019 sets out 23 fundamental rights and is designed to ensure that all persons in the state are treated in a way that is consistent with these rights. It came into effect on 1 January 2020 and requires all state legislation to be interpreted in a way that is consistent with its human rights protections.
Temporary suspension of the Human Rights Act
Section 56(12) of the Youth Justice Act now specifically states that the provision is valid even where it is incompatible with human rights and in spite of anything in the Human Rights Act 2019.
The effect of the amendment is to temporarily suspend the operation of the Human Rights Act 2019 as it applies to children in police custody. The provision expires on 31 December 2016, with the possibility of extension until the 31 December 2027.
Rationale for the changes
The Queensland government reportedly decided that the change to the Youth Justice Act 1992 was necessary after being advised that the common practice of holding young people in watch-houses on remand for extended periods was probably illegal and would not withstand a challenge under the Human Rights Act 2019.
A challenge could have resulted in all the children in police custody having to be transferred to youth detention centres immediately. Youth detention centres are more overcrowded than ever before, and the government claimed that such a transfer would have placed young people at risk. The Minister for Police, Mark Ryan, said the amendment fixed a ‘technical error’ and would protect the safety of the community.
Community reactions
The amendment has received forceful condemnation from a range of legal and political bodies. Critics of the change claim that the measure is deliberately punitive and harmful, that watchhouses are not designed for young people, should not be used for long-term detention, and that children will be exposed to adult prisoners and held in conditions that lack basis lacking basic amenities.
The hasty amendment has also been cited as evidence that Queensland needs a senate to ensure that all proposed state legislation is reviewed thoroughly before being passed.
The Opposition, the Greens, the Queensland Human Rights Commissioner and the National Children’s Commissioner have all spoken out against the suspension of the Human Rights Act 2019.
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