The Queensland Human Rights Commission has sounded the alarm on “discriminatory” laws that would allow police to charge children over a first minor drug offence while letting adults off with a warning.
The state government’s police powers and responsibilities and other legislation amendment bill would give adults caught carrying small quantities of illicit substances three chances before facing a criminal charge.
Police officers would be forced to consider diversionary options for children but they would still be subject to police discretion under the new law, as revealed by Guardian Australia earlier this month.
Bree Callanan, a senior lawyer at the QHRC, said the proposed laws were “a breach of the fundamental principle that children in the justice system should not be treated more harshly than adults”.
At a parliamentary inquiry into the laws, Callanan said the measures were “at odds” with youth justice principles and a child’s entitlement to protection under the state’s Human Rights Act. This includes for laws to be in their best interests and for children to be treated without discrimination, she said.
“We recommend [the legislation] … be amended so that a … child must receive a drug diversion warning … unless another diversionary option is taken under the Youth Justice Act,” Callanan told the public hearing on Monday.
The chief executive officer of the Youth Advocacy Centre, Katherine Hayes, said the proposed laws would entrench children in the criminal justice system.
Hayes said this was due to legislation introducing a new tougher sentencing regime for “serious repeat offenders” that was passed by the state government last week.
“Children … are more likely to enter custody, which doesn’t effectively address the underlying causes of their use of the substances in the first place,” Hayes said.
“This also will contribute to the overcrowding of detention centres and watch houses because of their cumulative effect, which is likely to occur in the coming months.”
The Queensland police (QPS) said they supported the government’s approach in their response to submissions to the bill.
They claimed that “applying the framework in a mandatory way to children would constrain the ability of police officers to use the existing diversionary options in section 11 of the [Youth Justice Act]”.
“For that reason, the bill makes the use of drug diversion warnings and drug diversion assessment programs, in relation to children, discretionary,” QPS said.
QPS also noted that the children’s court has the discretion to dismiss charges under the Youth Justice Act if they believe “police should have initiated a diversionary option rather than charging a child”.
But the chair of children’s law at the Queensland Law Society, Damian Bartholomew, said while the court does have this discretionary power, children would still be disadvantaged as it would form part of their court history.
“That will be quite different to what would be having to an adult in the equivalent situation where under this legislation they would be diverted and the matter would not be presented on their court history,” he told the hearing.
It comes as the QHRC also expressed concern over a provision in the bill that would strengthen the drug trafficking offence from 25 years to life in prison, with Callanan dubbing it a “significant limitation on the right to liberty.”
The commission also called for there to be no limitations on the number of warnings or diversionary measures that police can issue for a drug offence “unless there is evidence of commerciality”.
The QHRC said they otherwise supported the bill and its commitment to a “harm reduction and health-based approach” to personal drug use and possession.
The Queensland Mental Health Commission and Alcohol and Drug Foundation also backed the bill and said they hoped it could be a first step towards decriminalisation.
Queensland’s mental health commissioner, Ivan Frkovic, said the bill was “an important development in drug law reform in Queensland” that has the potential to “alleviate demands on the justice system” and “achieve positive outcomes for people who use drugs, their families and the broader community”.
The state manager at the Alcohol and Drug Foundation, Martin Milne, said 80-90% of illicit drug users are not dependent on drugs and for these people a criminal response does more harm than good.
“On the other hand, for those who are dependent on illicit drugs criminalisation is also an ineffective and harmful response,” Milne said.
“People who are most dependent on substances need effective health interventions rather than experiencing further harm from the criminal justice system.”
