Queensland to override state’s Human Rights Act in bid to make breach of bail an offence for children

The Queensland government will override its own Human Rights Act to implement laws allowing children to be charged with criminal offences for breaching bail conditions, conceding its new laws are “incompatible” with human rights.

The police minister, Mark Ryan, said the Palaszczuk government’s strengthening community safety bill will include an amendment to the Bail Act which allows children breaching bail to be charged with the same offence as an adult.

“The government accepts that these provisions are incompatible with human rights,” Ryan wrote in a statement about exceptional circumstances tabled on Tuesday.

“Therefore, in this exceptional case, the [Human Rights Act] is being overridden and its application entirely excluded from the operation of these new provisions to protect community safety.”

Ryan said that the amendment was “inconsistent with international standards about the best interests of the child.”

He said this was because the amendment could make it more likely that children will be detained pending trial, despite standards by the United Nations that it “shall be used only as a measure of last resort”.

The measures would also breach the UN’s standards that detention “before trial shall be avoided to the extent possible and limited to exceptional circumstances” and “all efforts shall be made to apply alternative measures”, he wrote.

The Queensland premier, Annastacia Palaszczuk, announced yesterday the government would reverse its previous position and criminalise breach of bail for children, prompting fears it will spark a human rights emergency in the state’s buckling youth detention system.

Youth detention centres are already full and about 80 children are being held in adult watch houses, some for more than four weeks. Advocates say the new measures are sure to see the number of children held in watch houses rise.

On Tuesday, Ryan said there was an “acute problem presented by a small cohort of serious repeat offenders” – with 17% of youth offenders committing almost half of all youth crime. The number of these serious repeat offenders had grown from 10% of youth offenders a year earlier, he said.

“The measures in this bill are designed to address this serious problem. In the government’s view this presents an exceptional crisis situation constituting a threat to public safety,” Ryan wrote.

Under the Human Rights Act, proposed legislation in Queensland must be accompanied by a statement of compatibility, which says whether the relevant minister believes it is compatible with human rights. It also gives parliament the ability to make an “override declaration”, which allows laws to take effect if they are incompatible with the Human Rights Act. Such declarations should “only be made in exceptional circumstances”, such as war, a state of emergency, or “an exceptional crisis” constituting a threat to public health, safety or order.

The move was rebuked by Greens MP Michael Berkman.

“They don’t care about community safety, all they care about is a headline,” Berkman said.

“Queenslanders now know Labor will abandon their supposed principles for political clout, even where they concede they’re breaching Queensland’s Human Rights Act.”

Palaszczuk told parliament the “full force of the law” would be used to crack down on serious repeat young offenders, as she announced further details of the government’s new youth crime legislation.

“We have listened to the community and this action is all about putting community safety first,” Palaszczuk told parliament.

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The premier said there had been a 7% decline in the number of young people with a proven offence in the past year and a 3% reduction in the number of offences overall.

Palaszczuk noted the vast majority of young people in contact with the youth justice system do not re-offend.

Breach of bail was one of several new measures added to a youth justice response that has prompted a backlash from experts since being announced in the aftermath of the alleged murder of Brisbane woman Emma Lovell on Boxing Day.

Palaszczuk said the government would expand the number of offences with a presumption against bail, strengthen conditional release orders and enhance intensive case management for youth offenders.

A coalition of more than 50 experts and organisations have called on the government and opposition not to politicise the issue and to adopt a smarter, not a tougher approach that prioritises early intervention and rehabilitation.

Ryan on Tuesday confirmed three clauses of the government’s new laws are incompatible with the Human Rights Act: breach of bail as an offence for children, a separate sentencing regime for serious repeat youth offenders and the requirement to serve suspended period of detention for conditional release orders.

The government will allocate $332m to the measures, bringing the government’s total investment in youth justice to $1.1bn since 2015.

Big-ticket items include an additional $100m for programs to curb the causes of youth crime, including $4m for on-country programs for First Nations communities, and $66m allocated for “proactive policing”, such as high-visibility police patrols.

So-called “flying squads” will also be expanded, with a $17m investment for expert youth justice workers to partner with police to target high-risk youth offenders.

An investment of $15m will be provided to elderly people to help them install security systems in their homes. There will also be $10m allocated for a vehicle immobilisers trial to begin this year in Cairns, Townsville and Mt Isa and an additional $9m to assist victims of crime.

Pressed by the opposition about whether the government would remove “detention as a last resort” from the Youth Justice Act, the premier said Queensland was not alone in adopting this approach.

“This principle … is consistent with other jurisdictions and the United Nations,” she told parliament. “So no, we will not be moving away from that principle.”

The youth justice bill will go to a parliamentary committee for two weeks before returning to parliament for a final vote.

– with Ben Smee