By Pandora’s Blog Editor, Stella Dziov
Discussion and interest in youth crime has rapidly increased following rising rates of offence in Queensland. Many communities across Queensland feel unsafe and are demanding action from their representatives. The government has responded with amendments to various acts through the Strengthening Community Safety Bill 2023 (Qld) (“SCS Bill”) and the Child Protection (Offender Reporting and Offender Prohibition Order) and Other Legislation Amendment Bill 2022 (Qld) (“CPOL Bill”). This article focuses on one of the legislative changes from the latter Bill which overruled the Human Rights Act 2019 (Qld) to allow children to be indefinitely held in adult watch houses until a place in a youth detention centre becomes unavailable.
Current State of Youth Crime in Australia/Queensland
On average, Australia experienced a 6% increase in youth offending from 2022-23 compared to the previous year.[1] Queensland also had a 6% increase in youth offending.[2] These increases have greatly concerned Australians, with people calling for their government to intervene and institute harsher punishments to curb the increasing offending rates.[3] A focus of the government has been to increase ‘safety’ for the communities that are being most affected.[4]Additionally, theft and unlawful use of motor vehicles was noted as a particular concern following a significant increase in the offence.[5] Consequently, the government has enacted legislation that aligns with this priority.
Legislative changes in Queensland for Youth Crime
The government brought the SCS Bill into effect on the 22nd of March 2023. The bill increased penalties for unlawful use of a motor vehicle,[6] removed the mandatory need for police officers to seek alternatives to arrest for youths so that now it is only discretionary,[7] as well as made it so that a child in breach of bail has committed the same offence as an adult.[8] These harsher, more punitive measures put pressure on already overcrowded youth detention centres (YDCs). Subsequently, on the 1st of September 2023, the Parliament assented to a Bill which included an amendment to section 262 allowing the Governor in Council to establish police watchhouses as YDCs, even where it is ‘incompatible with human rights’ and ‘despite anything else in the Human Rights Act 2019’.[9] This allows the Minister to recommend to the Governor in Council that regulation be introduced to create a youth detention centre in a police watchhouse, in which children could be held indefinitely until a spot in a YDC becomes available. This amendment came less than a month after a Queensland court decision which found that multiple children were being held unlawfully in police watchhouses.[10]
The Minister is allowed to introduce these regulations, despite them being incompatible with the Human Rights Act 2019 (Qld) (“Human Rights Act”), as the Act may be overridden by Parliament but only in ‘exceptional circumstances’.[11] Examples listed in the Act include ‘war, a state of emergency,’ and ‘an exceptional crisis situation constituting a threat to public safety, health or order’. In compliance with the Human Rights Act, the member who introduces the Bill must prepare a statement of compatibility which states whether, in their opinion, the legislation is compatible with the Human Rights Act and if not, the ‘nature and extent of the incompatibility’.[12] In the statement of compatibility for the CPOL Bill, the Minister acknowledged that children may ‘not have access to appropriate fresh air or direct sunlight’, it may be difficult for family members to visit, and that the children may ‘see or hear adult detainees’.[13]The Minister justifies this amendment by saying that ‘holding children in police watchhouses is preferrable to transferring them to overcrowded YDCs’ where they may not receive the care or supervision they require.[14] Nevertheless, police watchhouses are not designed to hold children and are only intended to hold adults for very short periods of time. Contradictorily, the Minister has defended the amendment by claiming children will not have their needs met in overcrowded YDCs yet has established an alternative which is equally incapable of providing children with the requisite care. In addition, research has shown that police watchhouses are not being used as a last resort but rather increasingly relied upon to house children and for longer periods of time.[15] This amendment has been added quickly and without thorough consideration of the long-term consequences of its enactment.
Potential Consequences of this Overruling
The punitive nature of these amendments to youth justice legislation is very likely to result in higher youth incarceration rates. YDCs, already at capacity, will be put under greater strain until Queensland can build additional centres using their ‘rapid build approach’ to address capacity concerns.[16] The government claims that overruling the Human Rights Act is out of necessity for ‘community safety’ however, increasing punitive measures have historically been proven not to deter offending.[17] Additionally, incarceration at a young age has been identified as a significant risk factor of reoffending.[18] The police watchhouses are ‘traumatic’ to children, particularly those that are held for longer than overnight, so even short stays may have lasting psychological effects on the child that increase their risk of reoffence.[19]
There is a clear need to protect communities and deter children from youth crime however, it should not be at the expense of these children’s rights. The government is employing a ‘tough on crime’ rhetoric to appease communities that nevertheless perpetuates disproven methods of reducing youth crime rates.
I sincerely sympathise with the families and communities that have been impacted by youth crime, yet do not believe these punitive measures that overrule children’s human rights are the solution to this systemic issue. In fact, I would argue these laws only further perpetuate it.
[1] Australian Bureau of Statistics, Recorded Crime: Offenders, 2022-23. ABS (Catalogue No. 4519.0, 8 February 2024).
[2] Ibid.
[3] Rachel Riga, ‘Queensland Premier Steven Miles unveils community safety plan to crack down on crime’, ABC News (online at 30 April 2024) < https://www.abc.net.au/news/2024-04-30/queensland-government-announces-community-safety-plan/103782406>.
[4] Explanatory Notes, Strengthening Community Safety Bill 2023 (Qld) 1.
[5] Ibid.
[6] Strengthening Community Safety Bill 2023 (Qld) s 8.
[7] Ibid s 16.
[8] s 29(3) Bail Act 1980 (Qld).
[9] Youth Justice Act 1992 (Qld).
[10] Kate McKenna, ‘Queensland Supreme Court judge orders urgent transfer of three children to youth detention from watch houses’, ABC News(online at 4 August 2023) <https://www.abc.net.au/news/2023-08-04/qld-judge-orders-transfer-children-from-watch-house-to-detention/102691270>.
[11] s 43(4).
[12] Ibid s 38 (1)-(2).
[13] Statement of Compatibility, Child Protection (Offender Reporting and Offender Prohibition order) and Other Legislation Amendment Bill 2022 (Qld) 17.
[14] Ibid.
[15] Queensland Family and Child Commission, Who’s responsible: Understanding why young people are being held longer in Queensland Watch Houses (Report, November 2023) 10.
[16] Ibid 12.
[17] Motz et al., ‘Does contact with the justice system deter or promote future delinquency? Results from a longitudinal study of British adolescent twins’ (2020) 58(2) Criminology 307, 326.
[18] Jason Payne, Recidivism in Australia: findings and future research (Research and Public Policy Series No 80, 1 October 2007) 75, 92.
[19] Who’s responsible (n 15) 3.