Queensland Labor MPs found out on Monday that they were expected to vote to suspend the state’s Human Rights Act, for a second time, to allow for the indefinite detention of children in adult police watch houses.
No one else seemed to have any warning. On Wednesday afternoon – on a particularly dreary day in state parliament – the police minister, Mark Ryan, tacked the law change on to an unrelated child safety bill, allowing it to pass through parliament the following day with no committee scrutiny.
So why the secrecy and urgency? Behind the scenes, concerns had been mounting within youth justice circles about “a potential Robodebt situation”, sources say, following concessions in a recent court case that the practice of keeping children in watch houses for extended periods might not be lawful.
On 1 August, the Cairns-based organisation Youth Empowered Towards Independence brought a potential test case to the Queensland supreme court, seeking orders for the urgent transfer of several young people.
The court was not ultimately required to rule on the outright lawfulness of keeping children on remand in adult police watch houses.
However, in the process, the state made a written concession – revealed in the published judgment – that there was “a prima facie case” that children were being unlawfully detained.
Legal sources say a concession of that nature is largely a formality in a habeas corpus case and would not preclude the state from ultimately arguing it had acted in accordance with the law.
Even so, the concession – and the likelihood of youth advocates bringing a second test case to the court – seemed to spook government officials.
The Queensland police service refused to say whether it was acting lawfully by continuing to detain children on remand.
One source with knowledge of discussions within a state government department said the situation had been likened internally to robodebt, whereby the former federal government had maintained the scheme despite advice it was illegal.
“It wasn’t so much concern about whether the government might lose a case, but what happens if we do lose and we kept kids in watch houses despite knowing there was a grey area.
“The official line is there’s simply no other place for these kids to go. And they knew that another court case was coming.”
On Thursday, the youth justice minister, Di Farmer, said the urgent changes were required after she received new advice from the solicitor general, Gim Del Villar KC, that keeping children in police custody on remand was not lawful.
Farmer said Del Villar advised the state government it had been relying on an interpretation of the Youth Justice Act that was “likely incorrect”.
The advice forced the government’s hand. It had to either remove kids from watch houses or change the law. And it decided to change the law.
Basic rights seem to be disposable
No other Australian jurisdiction could have changed the law to suit its own ends like Queensland, where there is no upper house to scrutinise legislation.
In the absence of a house of review, Queensland has a system of committees designed to offer scrutiny and public consultation on proposed bills before they are brought back to parliament for a vote.
But the state government seems to have found a way to circumvent that process too. On Wednesday it tacked 57 pages of last-minute amendments on a 48-page child safety bill.
The LNP opposition – presumably forgetting the controversies of the Bjelke-Petersen and Newman years – called it the “biggest affront to democracy in Queensland’s history”.
By choosing to override the Human Rights Act in that manner, the state government has signalled that basic rights are disposable in Queensland, when it suits the whims of a government. The human rights commissioner, Scott McDougall, said on ABC radio that farm animals have more rights than these children.
It is important to make clear that “human rights” is not an academic term or some attempt to shift the scales of justice in favour of young people accused of a crime.
Abuses of children’s rights occur on a daily basis in police watch houses. Conditions include exposure of children to aggressive adult detainees, a lack of appropriate facilities for girls, lack of access to showers or clean clothes and young people sleeping on yoga mats in shower stalls.
Children have been held for up to 40 days in cells designed to hold adults for less than 24 hours. The experience has been likened to sensory depravation, as the lights in cells remain on for 24 hours a day and there is typically no access to sunlight.
Farmer says the law changes allow “business as usual”.
She says the government has no choice but to detain children in watch houses, as youth detention centres are full. (Experts say this is due to the state’s failed youth justice policies, which over-criminalise children.)
Labor MPs who spoke to Guardian Australia said they were told the bill was necessary because if the government lost a court case, it would be forced to release or transfer potentially dozens of children. If they went to youth detention centres, they would be doubled into cells and the situation “might cause riots”.
Youth organisations say other options exist and would have been supported by the sector – such as keeping children temporarily in hotels or at the white elephant quarantine camp at Wellcamp.
Farmer also says the human rights override is time limited – until 2026 – when two proposed new detention centres are expected to open.
The minister’s own words from 2019 were, presumably, not front of her mind this week.
“If we do not address the causes of offending and reoffending, then all we will be able to promise Queenslanders is that we will build more and more detention centres now and into the future and we will never break the cycle,” she told parliament four years ago.
“This requires leadership.”
