Australia’s Community Safety and Legal Affairs Committee concluded that the proposed Queensland Community Safety Bill 2024 can breach the state’s human rights law by not deeming imprisonment as a last resort to impose criminal penalties on youth offenders.
Currently, Youth Justice Principle 18, contained in Schedule 1 of the Youth Justice Act, states a child should only be detained in custody for an offence “as a last resort and for the least time that is justified in the circumstances.” The Bill’s amendment aims to address a perceived misinterpretation that courts cannot impose detention if other penalties are available. By rewording principle 18, the Bill intends to “make plain” that detention can be imposed when other penalties are inappropriate, reinforcing the courts’ ability to make detention decisions in the interest of community safety. It also emphasises that detention should last no longer than necessary to meet its intended purpose. The statement of compatibility asserts that these amendments are clarifications and “are not intended to change the law.”
In the report, several stakeholders voiced opposition to the amendment. Concerns include the potential for courts to prioritise detention over alternative sentences, an increase in the incarceration of children, prolonged custodial sentences, and further trauma leading to continued criminality among young offenders. The Aboriginal and Torres Strait Islander Legal Service (ATSILS) argues that evidence shows detention does not effectively reduce youth crime rates and that maintaining detention as a last resort for adults but not for children imposes a higher standard on young offenders. ATSILS contends that these changes would impinge on the rights of the child under both the UN Convention on the Rights of the Child and the HRA.
In contrast, PeakCare supports the amendment because it does not fundamentally alter the effect of principle 18 and may assist judicial decision-making. Similarly, former director-general of Queensland’s Corrective Services Commission, Keith Hamburger, submitted that detention should be “an option of first resort” for repeat juvenile offenders but recommended a reform of the current youth detention model to a “therapeutic assessment centre” approach.
Despite these concerns, the committee recommended the bill’s passage, marking the third instance in two years where the government has advanced legislation restricting children’s rights. Previously, the Queensland government introduced the Child Protection (Offender Reporting and Offender Prohibition Order) and Other Legislation Amendment Bill 2022. This Bill allowed the imprisonment of children in adult police watchhouses, even if it conflicted with human rights standards. The police minister, Mark Ryan, justified the change by citing urgent capacity issues in the state’s youth correctional facilities, although this measure is set to expire in December 2026.
The Queensland Human Rights Act 2019 (HRA) includes specific provisions concerning the rights of children involved in criminal proceedings. The proposed clarification of the principle of “detention as a last resort” raises concerns about the court’s ability to serve the best interests of the child and promote rehabilitation during proceedings. Section 29(3) of the HRA stipulates that a person must not be deprived of their liberty except on lawful grounds and follow established procedures. The Bill’s amendments to the sentencing provisions could lead to children being detained in violation of domestic and international human rights conventions, including the 1991 Royal Commission into Aboriginal Deaths in Custody and the UN Convention on the Rights of the Child, both of which Australia has ratified.
