The Queensland government could still face a damages bill in the tens of millions of dollars, some lawyers say, despite retrospective legislation exempting it from liability for holding children in adult police watch houses.
Dylan Voller’s lawyer Peter O’Brien, the solicitor behind the class action against the Northern Territory’s Don Dale youth detention centre, said he believed the retrospective legislation could be challenged in court.
He estimated the state government would probably owe children unlawfully held in police watch houses as much as $5,000 for each day behind bars – plus damages.
“If the circumstances of the detention were particularly decrepit, or unpleasant, or cruel, or inhumane, then that would go to aggravated damages,” he said. “And then in addition to that, there would be damages of a punitive nature, exemplary damages.
“Those would be damages which would ordinarily apply in the case where an authority exercising legislative power fails to do so lawfully.”
Children could also claim for other damages, including a “residual liberty claim” for the worse conditions of a police watch house compared with a youth detention centre, O’Brien said.
He said all told, an ordinary child could claim for tens of thousands each.
The practice of detaining children in police watch houses has been used for decades in Queensland, with thousands of children a year in 2021 and 2022 kept for longer than six hours, and hundreds for longer than 48 hours, according to data released in parliament. At $5,000 per night spent, this could work out to $35m alone for these two years.
The state government last week passed amendments retroactively legalising the practice after the supreme court ordered the release of three children from police custody earlier this month. The government later received advice from the solicitor general that said its interpretation of the Youth Justice Act was “likely incorrect”, potentially meaning children collectively had spent thousands of days unlawfully imprisoned.
Guardian Australia spoke to other lawyers who doubted the success of any challenge, pointing to the case of the Ukrainian-Australian man Ivan Polyukhovich, a soldier of the second world war convicted of war crimes in the 1990s on the basis of retrospective legislation.
Other laws that retroactively prohibited tax arrangements, or redefined the meaning of corrupt conduct, have survived legal challenge, though others have failed. In 2013, the high court overturned retrospective laws requiring reporting income and assets to Centrelink.
The Australian Lawyers Alliance head, Greg Barnes, said retrospective legislation could be challenged.
“The view is that if legislation is retrospective, and that retrospectively adversely impacts on a right that a person may have had – for example, to sue for false imprisonment – then, unless the words are absolutely clear and capable of no other interpretation, a court may rule in favour of the person who’s seeking to enforce a right,” he said.
“Retrospective legislation is seemed to be generally offending the rule of law.”
O’Brien said it was an extraordinary and rare step for any government to take. “I think that that sort of legislation that renders lawful what would otherwise have been unlawful in relation to liberty of children is imminently challengeable,” he said.
“In my view it’s totally irresponsible and also potentially discriminatory depending on how [it] impacts on certain children more than others.”
Queensland’s youth justice minister, Di Farmer, said the government needed to enact the amendments to address “a technical error in orders being made for young people going into detention, which was highlighted in recent supreme court proceedings”.
“We will continue to ensure young people ordered into custody by a court spend the least amount of time possible in watch houses,” she said.
“The government sought, and acted on, the advice of the solicitor general to ensure 30 years of established practice and process could continue in the best interests and safety of the community, young people in custody, staff and visitors to detention centres.”
The state is under increased pressure to release the solicitor general’s legal advice.
Some Labor MPs who have become increasingly restless over the issue say privately they are concerned the legal advice was being used to justify what amounted to a policy decision.
“Once the solicitor general found watch houses were unlawful, we had two decisions – comply with the law or change the law,” an MP said. “That’s a matter of policy. They say it’s not possible but I’m not convinced we’ve tried hard enough.”
Genevieve Sinclair, the chief executive of Yeti, said it was critical to know what advice the government relied upon when it decided to override the Human Rights Act with no consultation.
“It has to be released,” she said.
MPs who spoke to Guardian Australia say they were angry to discover the existence of a letter from Yeti that appeared to cast doubt about some of the government’s claims it had to act with urgency.
The letter shows the organisation flagged it might take further legal action without notice, but that it also offered to work with government on transitional arrangements that would “avoid” the sort of test case that would result in large numbers of children being transferred into youth detention, where there is no current capacity.
Guardian Australia asked the acting premier, Steven Miles, whether he was aware of that letter and held the same concerns.
His office said he “has answered a lot of questions at media conferences on this” and referred to comments by Farmer that the solicitor general had provided specific advice related to the letter.
Asked on Thursday whether the letter shows the government had an alternative to legislating, the transport minister, Mark Bailey, referred to the legal advice.
“Well, the government needs to take advice on these matters. The solicitor general is obviously a key person to give that advice. I understand that advice was provided.”
