Recently the application of the Human Rights Act 2019 (Qld) was overridden in the development of new legislative amendments. The legislative changes, among other things, will see children charged with a criminal offence for breaching bail conditions. This could apply to an extraordinary range of circumstances depending on the conditions of a child’s bail, such as missing an appointment, moving to a different place of residence, or failing to meet a curfew.

The Strengthening Community Safety Bill 2023 (Qld) was primarily aimed at “keeping the community safe, [and strengthening] youth justice laws to respond to serious repeat offenders”.

When introducing the Bill, the Hon Mark Ryan MP, Minister for Police and Corrective Services and Minister for Fire and Emergency Services, prepared and tabled a statement of compatibility, which considered whether the Bill was compatible with the Human Rights Act. The statement identified that the following aspects of the Bill were not compatible with the Human Rights Act:

• amendments which created a breach of bail offence for children
• a mechanism to make a declaration that a child is a serious repeat offender, which impacts the sentencing process
• a requirement for a child to serve a suspended period of detention upon breach of a conditional release order where the order was imposed for a prescribed indictable offence, unless special circumstances exist.

The Minister found that these provisions imposed limits on the following human rights of children:

• the right to protection in their best interests
• the right to liberty
• the right not to be subject to retrospective increases in penalties.

There were arguably other aspects of the Bill that were also incompatible with human rights, but those aspects were not deemed incompatible by the Minister in their statement of compatibility.

As parts of the Bill were acknowledged to be incompatible with the Human Rights Act, the Minister tabled a statement about exceptional circumstances. The statement provided that the Human Rights Act would not apply to the operation of these particular incompatible provisions in the Bill. That was the first time since the establishment of the Human Rights Act in Queensland where this mechanism had been used.

Compounding matters, the Bill was declared urgent. The Bill was introduced to Parliament on 21 February 2023. It was referred to the Economics and Governance Committee who were required to consider the Bill and provide a report back to Parliament. The Committee’s report was due by 10 March 2023. Submissions were due to the Committee at 12pm Friday, 24 February – a window of about 3 days from when the Bill was first introduced to Parliament.

Many expressed deep concern at the moves to introduce the new laws, to override the Human Rights Act, and to set such short timeframes for consultation.

So, if the Human Rights Act can be overridden, how effective is it? And what’s the benefit of making a submission to an inquiry in those circumstances?

I once received some very good advice; that it’s important to consciously look for small wins along the way to your bigger goals. It may not be immediately obvious, but there were some wins here thanks to the Human Rights Act. Strong engagement with the Inquiry and the submission process also played an important role in these victories. Some wins included:

• The fact that the Minister introducing the Bill was required to write a Statement of Compatibility with the Human Rights Act in the first place. This requirement comes from Section 38 of Human Rights Act
• Despite the very small window for submissions, a lot of people mobilised to respond to the Inquiry. You can have a look at their submissions on the Committee Inquiry page.
• Due to the unprecedented move of overriding the Human Rights Act, the short timeframe for submissions, and the heated debate which followed, the whole situation generated a lot of media coverage, and a lot of public discourse.
• Because it was acknowledged that certain clauses of the Bill were incompatible with the Human Rights Act, those new and amended legislative provisions had to include a declaration that the Human Rights Act doesn’t apply to their operation (see, for example, Section 29 of the Bail Act 1980 (Qld). This is ‘the override declaration’. This makes it clear that the provision can operate under the law, despite the requirements of the Human Rights Act, but it also sticks out like a sore thumb. The declaration could serve as an ongoing reminder that these laws are not compatible with human rights, and this casts serious doubt over the longevity of these provisions.
• As outlined in the Human Rights Act, these override declarations will expire after five years. This means the operation of those incompatible provisions is likely limited in time unless Parliament goes through the process of re-enacting the override declaration.

Many submissions argued that the reforms went too far. These were supported by commentary from a range of different stakeholders on the need for more effective and less harmful solutions to properly support young people and improve safety in the community. The conversation will continue. For example, you may be interested in listening to this episode of the 7am Podcast, which interviewed the Queensland Human Rights Commissioner, Scott McDougall, about the Bill.

Ideas and evidence raised throughout this inquiry process will continue to fuel that ongoing conversation, and will also fuel the commentary and feedback in response to any future legislative and policy processes in this space. Crucially, in light of the immense public debate on the issues at hand, it will be front of mind for any law or policy maker to seriously consider whether a tough-on-youth-crime-approach is compatible with human rights, and whether Queensland can dig deeper and do better.

Significantly, a review on the operation of the Human Rights Act will also be announced later this year. QCOSS will be actively engaging with the review process and we strongly welcome sector feedback. If there are concerns about the Act’s effectiveness, now is an excellent time to reflect deeply about those concerns, and to bring those concerns to the table.