Revolving door risk in tougher bail for young offenders

Nick Gibbs | February 28, 2023

The Queensland government hasn’t justified overriding human rights laws with youth justice measures that will likely result in more children being kept behind bars for longer, an inquiry has been told.

The Palaszczuk government’s legislation, which will increase jail time for certain offences and create a new offence of breaching bail for children, is being probed by a committee after being introduced to parliament last week.

The government admits the measures will limit children’s rights, the first time Labor has overridden the Human Rights Act it passed in 2019.

A succession of human rights, advocacy and law groups put their concerns about the proposed laws on record during a hearing on Tuesday.

Human Rights Commissioner Scott McDougall used the government’s pandemic restrictions, which didn’t involve the Human Rights Act being overridden, to put the gravity of the move in context.

“Evidence relied on by the police minister does not make out a case for overriding the act, and cannot be described as comparable to a war, a state of emergency, or an exceptional crisis situation constituting a threat to public safety, health or order,” he told the inquiry.

“We do not want to set precedents where governments decide to suspend the operation of the Human Rights Act simply because there is … legitimate public anxiety about a particular issue.”

Mr McDougall said he recognised the rights of victims of youth crime, but he said at times of public anxiety it is most important to hold fast to fundamental values, and there was “no justification” for overriding human rights laws.

He said there’s evidence that pre-trial detention of children, which would likely increase, triples the chance of them reoffending.

“It is not just my opinion, but it’s the opinion of many experts,” the commissioner said.

The hearing involved legal and human rights groups expressing concerns in front of a rare, united front of Labor and Liberal National Party committee members supporting the measures.

Several groups took issue with the government’s lack of consultation, and the three-day window to prepare submissions. 

Bar Association of Queensland’s James Benjamin KC said criminalising breach of bail meant “children can be locked up for failing to keep a promise”. 

“The ability of children to sign a written contract to perform certain obligations is, under our law, limited, and rightly so,” he told the committee.

“The ability of anyone who has signed as the other party to such a contract to enforce contractual obligations of children is also limited.”

Queensland Family and Child Commissioner Luke Twyford said under existing laws children who breach bail can be brought back to court, which can then revisit their existing conditions.

“It’s much more streamlined, it’s more timely, in the sense of holding that young person accountable,” he said.

Under the proposed changes, the same breach will be a crime carrying a jail term of up to two years.

“That crime must lead to an arrest. It must lead to a detention, a new bail decision about a breach of bail, a new court appearance,” Mr Twyford said.

Queensland Aboriginal and Torres Strait Islander Child Protection Peak chief executive Garth Morgan decried the introduction of more hardline measures when investment in programs to keep young people out of detention is “woefully inadequate”.

“I’m afraid that until we change our approach, we’re going to keep seeing higher and higher numbers of our children in custody,” he said.

“For our First Nations children and young people caught up in this offending cycle, often their behaviour is grounded in poverty, disconnection, trauma as well as mental health and sometimes disabilities, which are often undiagnosed and untreated, such as fetal alcohol spectrum disorder.”