A landmark human rights bill proposed by the Queensland government has “major flaws” and could empower the state to move older children back into adult prisons, advocates say.
Amnesty International and Queensland-based lawyers have raised concerns about the bill, which is supposed to enshrine basic human rights but which they say could instead strip or restrict the rights of young people in the justice system.
Amnesty warned last week that the state was “creeping towards a human rights crisis” in youth justice. The organisation has welcomed the bill as an “important step” but will call for changes to sections on the rights of child prisoners.
The government’s proposed bill says that a child in custody on remand “must be segregated from all detained adults”.
But the language differs for children convicted of offences. It says they “must be treated in a way that is appropriate for a child’s age”.
Amnesty advocacy manager Emma Bull said, “As the bill stands, children can continue to be detained alongside adults in prison.
“This is a gross violation of international law and a practice the government has previously vowed to end. The bill must be amended to address this.”
Michael O’Keeffe, a retired lawyer who has worked for decades with Indigenous people in North Queensland, said the section “is as vague as it is illogical, as it is dangerous”. He said it contravened the United Nations Convention on the Rights of the Child.
Another concern raised by Amnesty is a loophole that would exempt child prisons from having to comply with a section of the Human Rights Act, which demands the separation of accused people on remand from those serving court-ordered sentences.
The bill defines as a human right that “an accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences”.
The chief executive of the Department of Child Safety is declared not to contravene the act if children on remand are held alongside those who have been convicted.
“This will result in [children] being treated differently to all other Queenslanders and fuel the growing crisis for kids on remand in Queensland,” Bull said.
“A group of people we are already failing are being deliberately excluded from rights protection. This exemption paves the way for this problem to not only continue but get worse.”
Amnesty International previously called for Queensland to address the growing numbers of children being held on remand, and for the age of criminal responsibility to be raised to 14.
Earlier this year, 17-year-old prisoners were moved from the state’s adult prisons into youth detention. The decision has been blamed by some for the subsequent overcrowding in child prisons.
The Queensland attorney general, Yvette D’ath, told Guardian Australia the integration of 17-year-olds with the youth prison population had been an election commitment and brought the state in line with other jurisdictions.
“This act is not only about enshrining 23 human rights of Queenslanders in legislation and embedding respect for human rights in the culture of the public sector, it is about bringing about very real, very practical reform,” D’ath said.
“The bill will require departments, agencies and public entities to make decisions and act in a way that is consistent with human rights and it will require the courts to interpret legislation in a way that is compatible with human rights, along with requiring the parliament to consider whether bills are compatible with human rights.”
O’Keefe said those wrongfully convicted, again disproportionately Indigenous, would also be denied rights under the bill.
The International Covenant on Civil and Political Rights provides for compensation to people wrongfully convicted, where there has been a miscarriage of justice. The Queensland bill does not.
O’Keeffe said people who were exonerated had fewer legal rights “than someone who slips on an onion at Bunnings”.
“It is the mark of a civilised society ... that it will seek to right its own mistakes to those it has wronged,” said O’Keeffe, who has represented several clients who were convicted of crimes they did not commit.
“A human rights bill which does not adopt this fundamental proposition is fatally flawed, and is not worthy of the respect or acceptance by the Queensland community.”
O’Keeffe said Indigenous people were most often wrongfully convicted.
“In Queensland, the human rights bill does little to reduce high Indigenous incarceration and suicide rates, a critical element of the Closing the Gap strategy,” he said.
“The bill does not include laws to guarantee protection against unlawful Indigenous incarceration, in accordance with international law. Rather than closing the gap, this bill just opens the prison gates wider for Indigenous Queenslanders.
“It is seriously open to question as to whether this bill does anything to actually protect fundamental right of freedom and liberty of Aboriginal Queenslanders.”
