The article below was written for the special Children's Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons, the Human Rights Law Centre and UNICEF Australia.
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Update on detaining kids in Queensland
On 28 March 2014, the Youth Justice and Other Legislation Amendment Act 2014 (Qld) came into force in Queensland. As outlined in the article “Detaining kids in Queensland” in the 2014 Children’s Rights Edition of this Bulletin, the amendments expressly ousted the ‘last resort principle’ which was previously contained in the Queensland legislation and provided that a detention order should only be imposed on youth as a last resort and for the shortest appropriate period. The last resort principle is the current standard set out in the Convention on the Rights of the Child. The Queensland government at the time, led by Campbell Newman, implemented this change on the basis that the last resort principle restricted the Court’s ability to make sentencing orders that were proportionate to the severity of the offender’s behaviour. As discussed in the “Detaining kids in Queensland” article, the reform is not only contrary to Australia’s international obligations but is also unlikely to be effective in preventing youth reoffending.
The amendments were strenuously opposed by human rights groups, as well as the then Labor Opposition. Since the reforms were introduced, the official Labor Party policy has been that a Labor government would wind-back the amendments and restore the last resort principle. This position was re-enforced in the lead up to the recent election held on 31 January 2015, with the Labor Party committing to standards proposed by the Queensland Law Society in regards to children’s law. These commitments included:
- reinstating the principle of detention as a last resort
- preventing publication of identifying information of repeat offenders other than in exceptional circumstances
- making breach of bail no longer an offence
- holding all children’s law matters in closed court
- making childhood findings of guilt for which no conviction was recorded inadmissible in relation to adult offences
- stopping the automatic transfer of 17 year olds who have six months or more left to serve in detention to adult corrective services facilities.
The Labor Party was elected into power in February 2015. The commitments made by the Labor Party during the election campaign, as outlined above, suggest that the Labor government may reinstate the last resort principle. These changes would bring Queensland more in line with the approach in other Australian states and territories and Australia’s international obligations, and importantly would provide more adequate protection for the rights of children. No further statements on the issue have been made since the Labor formed came into power.
We note that the definition of a young person in Queensland would remain persons under 17 years, contrary to the international standard of 18 years suggesting that even if amendments were made by the Labor Party, Queensland would not be complying with Australia’s international obligations.
We will be watching closely to see if the new Government keeps its election commitment.
Chloe Robinson is a Law Graduate at King & Wood Mallesons.