Queensland’s Suspension of Human Rights Act for Youth Detention

by | Oct 19, 2023

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About Rohi Ray

Rohi Ray is a law student at Symbiosis Law School, Pune, pursuing a BA LLB (Hons). He is dedicated to making a positive impact through equality law and human rights advocacy.

The state government of Queensland in Australia has suspended its Human Rights Act, paving the way for the indefinite confinement of children, some as young as 10 years, in police watch-houses. The existing concerns over extended child detention in these facilities are already alarming, particularly for the most vulnerable members of the Queensland community, including children from Aboriginal and Torres Strait Islander backgrounds.

The Condition of Child Rights in Queensland

Between 2021 and 2022, Queensland witnessed an average daily youth detention population of 287 individuals. Moreover, half of the children incarcerated in Queensland are subsequently re-sentenced for new offences within just 12 months of their release, indicating that the current approach is not effectively addressing the root causes of youth crime. Prolonged detention seems to be contributing to a cycle of re-offending rather than rehabilitation. Critically, detaining children in adult prisons not only violates their human rights but also has negative long-term consequences. Children detained in police watch-houses are at an increased risk of trauma, self-harm, physical and sexual abuse. The United Nations has repeatedly called for Australia to raise the age of criminal responsibility from 10 years to the international standard of 14 years old.

Australia has ratified the Convention on the Rights of the Child, the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). Read together, these instruments categorically safeguard children’s economic, civic, social, and cultural rights, all of which bear directly on the wellbeing of incarcerated children. Specifically, Article 37 of the United Nations Convention on the Rights of the Child (UNCRC) provides that children must not be subjected to cruel, inhuman or degrading treatment, and that the arrest and detention of children must be ‘in conformity with the law and … used only as a measure of last resort and for the shortest appropriate period of time.’ It is also critical that children in detention are to be separated from adults, which cannot be accommodated when incarcerating children in police watch-houses indefinitely.

The urgent transfer of children from police watch-houses – after the government conceded to a lack of lawful basis for detention – suggests awareness of the likely violation of human rights outlined in these conventions. This course of action not only raises questions about the protection of fundamental rights, but also the accountability of the political system, the exercise of principles of non-discrimination, and disregard for the right to be treated with humanity and respect. As such, the state’s response reveals a dissonance between Australia’s national and international commitments, necessitating a closer examination of how domestic laws align with global human rights standards and how these standards are incorporated into state legislation.

Australia also bears responsibilities under international agreements such as the Beijing Rules, Havana Rules, Nelson Mandela Rules and the Riyadh Guidelines. Of particular relevance is the Riyadh Guidelines, which asserts that ‘no child or young person should be subjected to harsh or degrading correction or punishment measures at home, in schools, or in any other institutions.’ The repeated instances of children being detained, coupled with the acknowledgement of a lack of lawful basis, highlight potential systemic issues within the juvenile justice system. These go beyond individual cases and point to the need for comprehensive reforms, including improvements in legal procedures, law enforcement practices, and the humane treatment of young people within the Queensland justice system.

Acute Impact on First Nations Peoples

Approximately 90 percent of children and young people currently imprisoned in Queensland are still awaiting trial. Indigenous children, though comprising only 4.6 percent of Queensland’s population, comprise nearly 63 percent of detainees. This overrepresentation is a result of historical and systemic injustices and ongoing state-inflicted violence (e.g. the policies behind the Stolen Generations) which have produced catastrophic gaps in life expectancy, health outcomes, and exposure to abuse between Indigenous and non-Indigenous Australians. The suspension of human rights protections exacerbates these issues, perpetuating a cycle of injustice and discrimination against First Nations communities.

The suspension of Queensland’s Human Rights Act relies on punitive measures that are likely to have dangerous long-term consequences for all children and young people, but especially those of Aboriginal and Torres Strait Islander backgrounds given the prominence of deaths in custody amongst incarcerated Indigenous populations. Collaboration between the government and Indigenous communities is essential in developing practical and equitable reforms. Indigenous rights advocates must be involved in decision-making processes to ensure culturally sensitive approaches to justice which address deeply entrenched, systemic issues. The overrepresentation of Indigenous children in detention, despite their small population, underscores these systemic issues and is a clear indicator of the failures within the justice system which emphasise the need for comprehensive reform. Alongside securing the humane and lawful treatment of all children in detention, it is essential that the government address the underlying causes of Indigenous incarceration, including institutional prejudice, poverty, lack of access to education, and state-perpetrated social disadvantage.

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