“There can be no keener revelation of a society’s soul than the way in which it treats its children.” Nelson Mandela
As Queensland heads toward the 2024 State Election, the Queensland Law Society (QLS) is calling for urgent youth justice reforms that will shape the future of our community.
Children are not only a reflection of the present but also the foundation of a prosperous future; for today’s punitive hand against children and young people cultivates tomorrow’s cycles of recidivism. The long-term well-being of our society hinges on genuine leadership that transcends the limitations of electoral terms.
The Society acknowledges the profound impact youth crime has on victims, their families and the wider community, and wholly supports the right of all Queenslanders to feel safe. However, genuine safety can only be achieved through solutions that work. With more than 150 years of legal experience, this call builds upon the Society’s long-standing advocacy for evidence-based strategies proven to address the root causes of youth crime and enhance community safety.
At the heart of the Society’s advocacy are the principles of the United Nations Convention on the Rights of the Child (CRC).
Recognising that children can be both victims and perpetrators of crime, Article 37(b) of CRC explicitly provides that deprivation of liberty, including arrest, detention and imprisonment, should be used only as a measure of last resort and for the shortest appropriate period of time.1
Article 37(d) provides every child deprived of his/her liberty has the right to prompt legal representation and the opportunity to challenge any unjust detention.2
The rationale behind these protections is clear: children, because of their developmental stage, are fundamentally different from adults. They possess a unique capacity for rehabilitation, but they are also more vulnerable to the long-term harm caused by punitive measures such as detention. Article 37, in particular, underscores the importance of adopting a rehabilitative approach, which is not only morally right but also more effective in promoting lasting community safety.
Raising the minimum age of criminal responsibility
A cornerstone of the Society’s call for youth justice reform is the legislative commitment to increase the minimum age of criminal responsibility from 10 years of age to at least 14 years. Current legislation in Queensland, which allows children as young as 10 to be held criminally responsible, is inconsistent with both international standards and modern scientific understanding of childhood development.3 Criminalising children under 14 is not only scientifically unjustifiable but also socially counterproductive, as early interactions with the criminal justice system are strong indicators of future offending.4
The Society has long advocated for raising the minimum age of criminal responsibility,5 grounded in neurological evidence showing that brain development, particularly in areas influencing reasoning and impulsivity, continues well into adolescence, with full maturity around age 25.6
‘Law and order’ morality typically develops in the mid-teens, while logical thinking and problem-solving abilities evolve significantly between ages 11 and 15.7
The Society also draws attention to the overrepresentation of children and young people with disabilities within the youth justice system, as highlighted in our submission to the Youth Justice Reform Select Committee on Youth Justice Reform in Queensland.8
Given their psychological and brain immaturity, children under 14 are generally unable to form criminal intent, as recognised by the doli incapax principle. However, this principle does not prevent children under 14 from being arrested, charged or held in detention on remand while awaiting legal proceedings.
Detention as a last resort and remand reforms
Public concern and media attention surrounding youth crime in Queensland have intensified in recent years, largely in response to high-profile incidents involving young offenders. Despite a decline in the overall number of young people charged with offences between 2011 and 2022,9 legislative changes introduced in 2023 sought to address rising community safety concerns.
These changes included, inter alia, the removal of police discretion to consider alternatives to arrest in certain cases, the introduction of serious repeat offender declarations, amendments to conditional release orders and expanded breach of bail provisions to include children.
However, the most concerning aspect of these changes was the removal of the principle of detention as a last resort.10
While these amendments aimed to assuage public fears, they have instead been accompanied by a six per cent increase in the number of young people charged and a significant rise in remand rates i.e., young people being held in detention whilst they await trial.11
As Judge Horneman-Wren SC of Ipswich aptly noted:
“In my view, it becomes a cruel and unusual punishment to detain a child for what is presently an unknown period, in knowledge of the fact that he should, ultimately, in all likelihood, not be sentenced to detention for the offences for which he is being held in custody.”12
The Society calls for the implementation of strategies aimed at reducing the high rate of young people on remand.13 Recognising that recent crime trends may not solely reflect young people’s behaviour, the Society advocates for restoring and upholding the principle of detention as a last resort,14 repealing breach of bail condition offences for children and ensuring safe housing options are available for those in the youth justice and child protection systems.
Fast-tracking programs, supported by targeted legal assistance sector funding, are also crucial to reducing the time young people spend on remand.15
Early outcomes from the Fast Track Sentencing Pilot, launched in March 2023, indicate improved median case resolution times in Cairns and Townsville. These findings highlight the pilot’s potential to significantly reduce remand periods. Accordingly, additional funding for effective case management and expanding the pilot to more jurisdictions is essential.
The Society has consistently emphasised the need for alternative measures to detention. It remains critical that detention is reserved as a last resort and is only used for the shortest possible time, ensuring that young people are not unjustly held on remand due to systemic inefficiencies.
Given the increasing workload of the Childrens Court, the Society also calls for the appointment of more judges.16 This recommendation builds on the Society’s advocacy in its 2020 Call to Parties for a stand-alone Childrens Court building in Brisbane and the expansion of stand-alone courthouses across Queensland.17
Watch houses
Queensland’s detention of children at a shocking rate has challenged the capacity of detention centres and caused an over-reliance on watch houses.
Recognising that these environments are criminogenic and risk further entrenching young people in the criminal justice system, the Society calls for a legislative requirement to avoid holding children and young people in watch houses, consistent with the Queensland Police Service operation manual. If unavoidable, their stay should not exceed 24 hours.18
This call builds on the Society’s response to the Queensland Community Safety Bill 2024. In its submission, the Society opposed amendments to youth justice principle 18, which proposed allowing the detention of children when deemed necessary for community safety. The Society warned that these changes could have unintended consequences, potentially leading to more children being held in watch houses and on remand for extended periods.19
Addressing overrepresentation of Aboriginal and Torres Strait Islander children
Aboriginal and Torres Strait Islander children remain significantly overrepresented in the youth justice system, accounting for 53 per cent of all distinct young people convicted in 2022/23.20 In its 2024 Call to Parties Statement, the Society renews its appeal for sustained and sufficient resourcing of First Nations organisations.
These organisations are uniquely positioned to provide culturally appropriate programs and support services that can directly address the factors contributing to the overrepresentation of Aboriginal and Torres Strait Islander children in the youth justice system.21
The Society recognises that meaningful, long-term change requires a systemic approach. It has consistently advocated for early intervention services to address the pervasive social and economic causes of offending within this vulnerable cohort. These causes include factors such as poverty, intergenerational trauma, inadequate access to education and employment opportunities, housing instability and systemic discrimination.
In its submission on the Strengthening Community Safety Bill 2023, the Society raised concerns about the disproportionate impact the amendments would have on Aboriginal and Torres Strait Islander children and young people.22 The Society emphasises that any reforms to the youth justice system must be carefully assessed for their potential to further entrench existing inequalities.
These efforts are consistent with Queensland’s commitment to the 19 socio-economic targets outlined in the National Agreement on Closing the Gap.
Call for reforms
These calls for reforms reflect the Society’s commitment to safeguarding the future of Queensland’s children and young people. The safety and prosperity of our community depend on implementing evidence-based policies designed to address the underlying causes of youth offending.
These reforms are not just necessary; they are imperative for building a safer, more equitable society where every child has the opportunity to grow, learn and contribute positively to our community.
Members are invited to review the Call to Parties statement here. The Queensland state election will be held on 26 October 2024.
Responses from parties and candidates:
Response from the Liberal National Party
Response from the Queensland Greens
Footnotes
1 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 37(b) (‘Convention on the Rights of the Child’).
2 Ibid 37(d).
3 The United Nations (2007) has set guidelines explicitly stating a MACR of lower than 12 is unacceptable and denies children’s protective rights. At the Universal Periodic Review in January 2021, 31 countries recommended that Australia increase the MACR to at least 14 years of age in order to uphold children’s human rights. https://www.hrlc.org.au/news/2021/1/20/un-review-highlights-need-for-aust-to-raise-the-age-criminal-responsibility
4 Susan Baidawi et al, Children Aged 10 to 13 in the Justice System: Characteristics, Alleged Offending and Legal Outcomes (Report to the Criminology Research Advisory Council, Criminology Research Grant, January 2024) 62.
5 Queensland Law Society, Submission to Attorney-General and Minister for Justice, Raising the minimum age of criminal responsibility (24 April 2020); Queensland Law Society, Submission to Community Support and Services Committee, Criminal Law (Raising the Age of Responsibility) Amendment Bill 2021 (30 November 2021).
6 Queensland Treasury, Youth offending – Research brief (April 2021) 7.
7 Ibid.
8 Queensland Law Society, Submission to Youth Justice Reform Select Committee, Youth Justice Reform in Queensland (20 November 2023).
9 From 14,485 in 2011-12 to 10,304 in 2021-22.
10 Queensland Law Society, Submission to Economics and Governance Committee, Strengthening Community Safety Bill 2023, (24 February 2023)
11 With the average daily number of youth on remand rising from 170 in 2019-20 to 249 in 2022-23.
12 R v Nathan (a pseudonym) [2023] QChC 4, [18].
13 Queensland Law Society, ‘2024 Call to Parties Statement – Queensland State Election’, calls 32 and 33.
14 Convention of the Rights of Children (n 1) art 37(b).
15 Queensland Law Society, ‘2024 Call to Parties Statement – Queensland State Election’, call 33.
16 Ibid call 32.
17 Queensland Law Society, ‘2024 Call to Parties Statement – Queensland State Election’, call 36(a).
18 Queensland Law Society, ‘2024 Call to Parties Statement – Queensland State Election’, call 34.
19 Queensland Law Society, Submission No 211 to Community Safety and Legal Affairs Committee, Queensland Community Safety Bill 2024 (17 May 2024) 12.
20 Childrens Court of Queensland Annual Report 2022-23 page 6, [18].
21 Queensland Law Society, ‘2024 Call to Parties Statement – Queensland State Election’, call 35.
22 Queensland Law Society, Submission to Economics and Governance Committee, Strengthening Community Safety Bill 2023 (24 February 2023) 6.
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