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RUBY:

From Schwartz Media, I’m Ruby Jones. This is 7am.

One state in Australia locks up more children than any other: Queensland. Now, the state government has put in place new laws, which make that situation worse. To enact those laws, the Queensland government has overridden its own Human Rights Act - in response to growing media pressure about youth crime.

Today, Queensland Human Rights Commissioner Scott McDougall, on the rights of children in a state that’s going to lock up more of them – and how his office has been sidelined.

It’s Tuesday April 4.

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RUBY:

So, Scott, you've spent time speaking to children who are in a Queensland watchhouse, which is essentially a cell in a police station where they might be put immediately after being brought into custody. Can you describe to me what those watchhouses are like and what children have said to you about being in that situation?

SCOTT:

Yeah, look, they're incredibly desolate places that are designed to process adults. They're high security environments. They're highly stressful environments. They're built of concrete and steel. We've heard stories of children being in a cell next to an adult who is being tasered and others who are coming off drugs. Children will be sleeping on plastic mats, sharing a cell with, I've heard in some cases, up to ten other children in a cell having to go to the toilet in front of their peers. There's no access to fresh air at all and no access to sunlight. And of course, there's no ability for children to do any serious sort of exercise and no ability for children to have family visits.

RUBY:

And the children who do have ended up in places like this, who are they? Can you tell me a bit about them and their circumstances?

SCOTT:

Overwhelmingly, most of them are Aboriginal and Torres Strait Islander children who have experienced trauma. Very often they are victims of family violence. Many of them are in out-of-home care and some are homeless and have run away from foster homes. They have generally very complex issues, including mental health and physical health issues, and they may have diagnosed or undiagnosed cognitive disabilities and learning disorders to some of the most vulnerable humans that we have in our society. And it has to be understood that Queensland has the highest rate of incarceration of young people in Australia. So in ‘21, ‘22, about 34% of all children in custody in Australia were sitting in a Queensland detention centre or a Queensland watchhouse. So Queensland has had a long issue with coming to terms with the needs of children. And the youth justice system has been struggling for some time.

RUBY:

Okay, so this is the context in which the Queensland Government has introduced new legislation that would make breach of bail an offence for children as well. Can you tell me about those laws and what the effect of them will be?

Archival Tape – Annastacia Palaszczuk:

“Well today I want to talk about youth justice, and this is a really serious issue and of course I said very publicly the community expects us to do more and that is exactly what we will do…”

SCOTT:

Yes. So on the 29th of December last year, the Premier announced a ten point plan that followed a tragic death of a woman allegedly involving two teenagers.

Archival Tape – Annastacia Palaszczuk:

“Families have been shattered and lives have been lost and that is why today we are taking very strong action.”

SCOTT:

So at the first available sittings this year, the Strengthening Community Safety Bill was introduced and it contained a number of punitive measures, including increasing maximum sentences for car theft from 7 to 10 years and creating new circumstances of aggravation for an offender if they posted their crime on social media or committed an offence at night.

Archival Tape – Annastacia Palaszczuk:

“In the case of serious indictable offences such as armed robbery and breaking and entering we are reversing the presumption of bail. The courts will be empowered to require repeat offenders to give reasons why they should get bail rather than requiring prosecutors to prove why they shouldn't.”

SCOTT:

But the most damaging reform that was introduced as part of that bill was the introduction of a breach of bail offence, combined with the creation of a power to enable a police officer to take a child into custody if the officer merely suspects that a child won't comply with their bail conditions.

Archival Tape – Annastacia Palaszczuk:

“So there'll be no ‘ifs and buts, ’ the fundamental principle of youth justice must be to protect the community from recidivist offenders and we will write that into law.”

RUBY:

And to do that - to breach of bail an offence for children, the Queensland government had to override its own Human Rights Act, haven't they? Tell me about that!

SCOTT:

In introducing this new act, the Parliament decided to make an override declaration. So Queensland's Human Rights Act enables a government to override human rights when it's in a situation described as an example in the Act as being a war, a state of emergency or a public health emergency. And unfortunately in this case, the government decided that the situation involving what could only be described as a slight increase in youth offending warranted an override of the act to enable these laws to be passed. It's really unfortunate and I think sets a really bad precedent in Queensland where on the back of really what amounts to public anxiety. And I don't want to downplay the significance of particular tragedies for families and communities, but that really doesn't meet the threshold of a public emergency that would justify overriding human rights, particularly of children. But the key right for this discussion is the right of children who are entitled under international law to be protected and in our Act, there's a specific right recognised that every child has the right to protection that is needed by the child and is in the best interests of the child because of being a child. And I think in this Strengthening of Communities Bill, we really have lost sight of the fact that the people who are impacted by these laws are children. They are not adults. They do not observe the same deterrent effect. Their brains are not fully developed and not capable of making the same decisions as adults. They deserve special protection because they are children.

RUBY:

We’ll be back after this.

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RUBY:

So the Human Rights Act was introduced by this same Labor government, the Palaszczuk Government. Four years later they moved to override it, to put in place these laws that make breach of bail an offence for children. What does it mean for a government to override its own human rights protections in this intentional way?

SCOTT:

I can only say that there were many people who were very dispirited, not just obviously in my office, but particularly in my office, that we were going backwards in creating a human rights culture by overriding the act in these circumstances. The impact of overriding the Act is that it takes away the ability of the Supreme Court to make a declaration of incompatibility, which would be a notice that is provided by the court, and it goes back to Parliament to say, The courts can't interpret these laws consistently with human rights and essentially invites the Parliament to reconsider the laws. So by making the override declaration, they've prevented the Supreme Court from doing that.

They've also prevented police officers who are exercising powers under these laws that have been specifically referred to in the override provision from being subject to complaints to our commission. In my view, they've set a very low bar and a poor precedent that other governments in the future may look back to and say, well, on that occasion the act was overridden. We can override it on this occasion as well. So what these laws are going to do because of the spot, the announcement that of the Premier, that there will be two new detention centres built. We know that the construction of those centres will take at least 18 months to two years, perhaps even longer. So in the meantime, it appears that there's no other plan other than to hold children in watch houses. So with these new laws we're going to see what I would describe as a human rights crisis unfolding in Queensland in our watch houses with children.

RUBY:

Yeah, and I suppose that begs the question, I mean, is there any point to having a Human Rights Act if it can be overridden like this?

SCOTT:

Yeah. Look, I think that is a fair enough question. And my response to that is to say, yes, it is. There are still many benefits in having a Human Rights Act and the real value of the Human Rights Act is that it requires decision makers to give proper consideration of human rights when making decisions, but also to act in a proportionate way. So as part of that process, they actually have to identify alternative ways of achieving their purpose. And to give you an example, as part of these youth justice laws, the government did have to table a statement of compatibility. And in that statement they identified that other alternatives to introducing a breach of bail offence would include increasing the support available to children to comply with bail. So the process has flushed out that that is actually the reasonably available alternative. But the Government is choosing not to go down that path of providing additional support to children. So I think even though they overridden the Act on this occasion, it still has played an important role in public discourse.

RUBY:

The Queensland Government. I mean, they say that they are overriding the Human Rights and Human Rights Act in this case because the circumstances are exceptional and they're responding to an issue of public safety. What do you say to that?

SCOTT:

Yes, there's no doubt that children driving vehicles at night is extremely dangerous to themselves and to the public. There's no question about that. But the bigger question is what is the overall impact of the justice system on community safety? And there is clear evidence that these punitive approaches will ultimately serve to decrease community safety because it leads to larger numbers of children becoming criminalised and committing more offences. Eventually, children will be released from custody. You know, at some point that will happen and those children will be more likely to reoffend again.

RUBY:

And I mean, what does that mean for them, for those children and their futures?

SCOTT:

Well, it sadly puts them on a course to adult detention and very few prospects of, you know, achieving any sort of rehabilitation and enjoying a life that they are otherwise obviously entitled to. And that is another issue with the overcrowding of youth detention centres in Queensland, there are very well, meaning staff who are, you know, desperately keen to work with children to get them through programs that would actually help them to get their life is back on track. Yet they're not able to implement those programs simply because they don't have the security arrangements in place to get children through them because of the overcrowding situation. So there's clearly more work that can be done in ensuring that children and families continue to be engaged in education so that they are not at risk of entering the criminal justice system. You couldn't call youth detention in Queensland a correctional facility because the children are not being given any opportunity to be corrected or to have any form of rehabilitation, sadly.

RUBY:

Scott, thanks so much for your time.

SCOTT:

Thank you!

RUBY:

In response to questions raised by this story, the Queensland Minister for Children, Youth Justice and Multicultural Affairs - Leanne Linard - said in a statement that the Queensland government had not taken the decision to pass new legislation lightly, and had acted in the interests of the community and safety. She said, quote: “I don’t want to see young people in watchhouses any longer than they have to be. However, community safety is paramount and if an alleged offender needs to be detained, they will remain in a watchhouse until they can be transferred to a youth detention centre.”

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RUBY:

Also in the news today….

Indigenous campaigner, activist and Yolngu elder Yunupingu has died on his homelands, aged 74.

Yunupingu’s voice can be heard on many Yothu Yindi songs, but his activism stretches back to the early 1960s. Into his latter years he remained a leader on Indigenous rights, land rights and a supporter of the Uluru Statement from the Heart.

AND…

Finnish Prime Minister Sanna Marin has conceded defeat in the country’s parliamentary election over the weekend, with her Social Democratic Party government suffering huge swings against it. Marin, aged 37, was the youngest prime minister in Finland’s history.

I’m Ruby Jones - this is 7am. See you tomorrow.

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