Amendment to the Youth Justice Act (Qld)
On 24 August 2023, the Queensland government passed an ‘urgent’ amendment to the Youth Justice Act 1992. The controversial change makes it lawful for young people who have been refused bail to be detained in police watch houses indefinitely. This page outlines the changes and the reactions to them.
What has 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 provision, children who were remanded in detention had to be delivered from the custody of police into the custody of the chief executive of corrective services as soon as reasonably practicable.
Under the changes, section 56 now states that the chief executive must notify the police of the date on which the delivery of the child 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 must decide on the date that a young person can be delivered into their custody based on the child’s needs having regard to:
- Their age and sex;
- Their cultural background;
- Their self-harm and suicide risk;
- Any medical conditions they have;
- Their physical and mental health;
- Any substance misuse or withdrawal issues they have;
- Their cognitive capacity;
- 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:
- the relative needs of other children being held in police custody in relation to the above considerations;
- the impact of the child’s delivery on their 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 watch houses.
What is the effect of the changes?
Under the old version of the Act, it was not legal to hold children at watch houses for extended periods. Young people were required to be transferred into a youth detention centre as soon as possible after they had been remanded. Under the new provision, children may be held in watch houses indefinitely. However, it is still not lawful for a young person to be detained in an adult prison.
Human Rights Act
The Human Rights Act 2019 sets out 23 fundamental rights and is designed to ensure that all persons in Queensland are afforded these human rights. The Human Rights Act 2019 came into effect on the 1 January 2020 and requires all Queensland legislation to be interpreted in a way that is consistent with its protections.
The recent amendment to the Youth Justice Act 1992 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 (section 56(12)). However, this subsection expires on 31 December 2016, with the possibility of extension until the 31 December 2027. 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.
Rationale for the changes to the Youth Justice Act
The government reportedly formed the view that the change to the Youth Justice Act 1992 was necessary after receiving legal advice. It had been advised that the common practice of holding children in watch houses for up to 40 days due to the overcrowding of youth detention centres was probably illegal and would not withstand a challenge on human rights grounds.
Such a challenge could have resulted in all the young people in police custody having to be transferred to youth detention centres immediately at a time when those centres are more overcrowded than they have ever been. The government said this would have placed young people at risk. The police Minister Mark Ryan said the changes fixed a ‘technical error’ and would protect community safety.
Reactions to the changes
The changes have been met with forceful and widespread condemnation.
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.
Activists and community organisations have also opposed the amendment, with Australian Lawyers for Human Rights and Sisters Inside calling for members of the public to join a public protest against the new laws on the afternoon on 25 August.
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