Breach of Bail to Return as an Offense for Children in Queensland

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Breach of Bail to Return as an Offense for Children in Queensland

Queensland’s new crackdown on youth offenders will be “felt for generations,” experts warn.

Breach of Bail to Return as an Offense for Children in Queensland
Credit: Depositphotos

Legal experts and human rights campaigners have slammed the Queensland government’s decision to override the state’s Human Rights Act and pursue criminal charges against children who breach bail.

The new legislation, introduced into the Queensland Parliament by Police and Corrective Services Minister Mark Ryan, will allow children to be charged with criminal offenses if they breach bail, in a move that “alarmed” the state’s human rights commissioner, Scott McDougall. 

He called upon the government, led by Premier Annastacia Palaszczuk, to “urgently change its approach to youth justice policy to better protect the rights of children, victims of crime and the broader community.”

The government said the new legislation has been introduced after careful consideration and following feedback from the community, police, and other stakeholders. It further argued that the new measures are “based in evidence,” something that McDougall disagrees with. 

“I am unaware of any evidence that increased maximum penalties of imprisonment will deter a child from engaging in risk-taking behavior,” he said.

The bail legislation is the centerpiece of a swathe of new efforts by the Labor government, which also includes laws to target “serious offenders” and a $100 million investment in diversion and rehabilitation. It comes after pressure from conservative media outlets regarding youth crime, primarily focused on regional cities in Queensland. 

Some of these measures will include:

  • Bail breaches for children will become a criminal offense for the first time this century.
  • A new declaration of serious repeat offenders: The Youth Justice Act will be amended to declare certain offenders as “serious repeat offenders,” meaning tougher sentencing principles to protect community safety must be applied.
  • Expanding the number of offenses with a presumption against bail. More crimes will require people to explain why they should receive bail, rather than a police order requesting that they don’t. 
  • Police do not need to consider alternatives to arrest when dealing with youths. 

The premier said in a statement that “these reforms allow a greater response to tackling youth crime and its complex causes to help break the cycle of offending for the future, while keeping Queenslanders safe.

Of all the decisions by the Queensland government, it is the astonishing admission by Ryan that their decision would breach the state’s Human Rights Act that has generated the most headlines. In a statement, Ryan admitted that “the government accepts that these provisions are incompatible with human rights. Therefore, in this exceptional case, the [Human Rights Act] is being overridden and its application is entirely excluded from the operation of these new provisions to protect community safety.” 

Much of the new government crackdown is in direct opposition to the recommendations of the 1991 Royal Commission into Aboriginal Deaths in Custody (RCIADIC). 

Section 91.b states that governments should “revise any criteria which inappropriately restrict the granting of bail to Aboriginal people,” while section 92 recommends that “imprisonment should be utilized only as a sanction of last resort.” 

First Nations people in Queensland are overwhelmingly represented in the justice system, with Indigenous children accounting for 62 percent of Queensland’s youth detention population. 

Debbie Kilroy, CEO of Sisters inside – an organization that focuses on children, and especially girls, in detention – says the new legislation is “gut wrenching.”

“We are on a slippery slope to legislating the kind of policing we are seeing elsewhere in the world that has horrified us – the kind of policing that targets First Nations’ youth,” Kilroy said in a statement to The Diplomat.

Speaking to this writer in February, Kilroy highlighted a story of a young girl who was forced to live on bail with a person that had previously sexually assaulted her. Her eventual escape would render her a criminal under the new legislation. 

In the wake of the Black Lives Matter movement in the United States, Kilroy lamented that Aboriginal people will die at the hands of the state with this new raft of measures. 

“The deaths in custody and mass incarceration of Aboriginal and Torres Strait Island peoples is an ongoing practice of invasion,” Kilroy said. “These policies are only about funding police to lock up Aboriginal and Torres Strait Islander children and definitely not about community safety.”

The Queensland Law Society called on the government to consult experts on youth justice, rather than the punitive approach that was being implemented. The society’s president, Chloe Kopilovic, noted that “locking up children will not stop crime.”

“It has been proven that after a child’s first interaction with the youth justice system they are more likely to re-offend. Further to this, the longer a child spends in custody, the more likely they are to be pipelined into the adult criminal justice system. And this is no place for them to be.”

Both Kilroy and the Law Society argue for focus and funding to be centered on the root of criminal issues. This includes poverty, substance abuse health, mental health, and education, all issues that many First Nations children deal with. 

Kilroy says the question that need to be asked is “why are children behaving this way, what harm has been done to them that they push back and harm others?”

“Every girl we’ve supported is a survivor victim of the most horrific violence, not only interpersonally, but at the hands of the state.”

Scott McDougall agreed, asking that “the Government must consult widely, and properly consider evidence-based solutions rather than rashly overriding human rights protections.” 

“Removing the rights of children ultimately does not uphold the rights of victims of crime.”

In February, a Queensland Children’s Court judge labeled the decision to keep a 13-year-old First Nations boy with severe developmental issues in solitary confinement for 20-24 hours a day during a heatwave as “cruel.”

Justice Tracy Fantin said the decision to keep the boy — who was on remand and suffers from fetal alcohol syndrome and attention deficit hyperactivity disorder — confined to his cell for 78 out of the last 87 days of his time in youth detention was “inappropriate” and served “no rehabilitative effect.”

“It is unsurprising that if you lock up a child for such lengthy periods of time with no stimulation other than access to a television, a child is likely to respond by behaving poorly,” Fantin stated in her ruling. “…[N]ot only is there no evidence that that detention has had any rehabilitative effect, I am satisfied that the detention is likely to have caused you significant harm.”

The judge noted that the state “must bear responsibility” in the likelihood that the boy’s treatment would only lead to recidivism. She told the boy, and the court: “To detain a young person who has your deficits and impairments, for the offense in question, for such a long period of time is, in my view, completely contrary to the regime of the Youth Justice Act and the Youth Justice principles.”

The Labor government has claimed they are listening to the community and even noted that their policies are more hardline than the previous, Liberal, government under Campbell Newman – who was labeled “authoritarian” by civil liberties groups. 

Guardian Australia described this admission as “almost surreal.”

The Liberal National (LNP) opposition in Queensland claimed credit for Labor’s decision. Rather than settle with that, however, they have put pressure on the government to go further and remove the principle of “detention as a last resort for children” – a fundamental tenant of international law – from the Youth Justice Act. 

State Green MP Michael Berkman noted that Labor “can’t win this race to the bottom.”

“They don’t care about community safety, all they care about is a headline,” Berkman said in a statement. “A ‘serious repeat offender’ declaration is this Government admitting that it’s failed to rehabilitate a child, and has no other solutions but cycling them back through an ineffective system.”

Everyone The Diplomat talked to for this story agreed that these policies will do nothing to improve community safety, and will only result in recidivism and tragedy. Kilroy is adamant that this is deliberate.

“We can act to reduce the harm. We know how to do that. This Palaszczuk government is choosing not to,” she said.

Queensland’s Human Rights Commissioner McDougall also strikes a mournful tone about the likely results of this legislation. “Without meaningful engagement to identify long lasting solutions, for victims, for children and for the wider community, nothing will change.”