Youth Justice and Other Legislation Amendment Bill 2021 Report No. 7, 57th Parliament Legal Affairs and Safety Committee April 2021 Legal Affairs and Safety Committee Chair Mr Peter Russo MP, Member for Toohey Deputy Chair Mrs Laura Gerber MP, Member for Currumbin1 Members Ms Sandy Bolton MP, Member for Noosa2 Ms Jonty Bush MP, Member for Cooper Mr Jason Hunt MP, Member for Caloundra3 Mr Andrew Powell MP, Member for Glass House4 Committee Secretariat Telephone +61 7 3553 6641 Fax +61 7 3553 6699 Email [email protected] Technical Scrutiny +61 7 3553 6601 Secretariat Committee webpage www.parliament.qld.gov.au/LASC Acknowledgements The committee acknowledges the assistance provided by the Queensland Police Service, the Department of Children, Youth Justice and Multicultural Affairs, the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships, and the Queensland Parliamentary Library. All web address references are current at the time of publishing. 1 On 9 March 2021, the Leader of the Opposition appointed the Member for Theodore, Mark Boothman MP, as substitute member of the committee for the Member for Currumbin, Laura Gerber MP, to attend the committee’s hearing on 16 March 2021. 2 On 26 March 2021, the Leader of the Opposition appointed the Member for Mermaid Beach, Ray Stevens MP, as substitute member of the committee for the Member for Noosa, Sandy Bolton MP, to attend the committee’s hearing on 26 March 2021. 3 On 3 March 2021, the Leader of the House appointed the Member for Redlands, Kim Richards MP, as substitute member of the committee for the Member for Caloundra, Jason Hunt MP, to attend the committee’s meetings and hearings on its regional trip to Mount Isa, Cairns and Townsville from 16 March to 19 March 2021. 4 On 22 March 2021, the Leader of the Opposition appointed the Member for Scenic Rim, Jon Krause MP, as substitute member of the committee for the Member for Glass House, Andrew Powell MP, to attend the committee’s hearing on 22 March 2021. Youth Justice and Other Legislation Amendment Bill 2021 Contents Abbreviations iii Chair’s foreword v Recommendations vi 1 Introduction 1 1.1 Role of the committee 1 1.2 Inquiry process 1 1.3 Policy objectives of the Bill 2 1.4 Consultation on the Bill 3 1.5 Should the Bill be passed? 4 2 Examination of the Bill 5 2.1 Amendments to the Youth Justice Act 1992 5 2.1.1 General stakeholder views 6 2.1.2 Departmental response to general stakeholder views 9 2.1.3 Impact on human rights 10 2.1.4 Disproportionate effect on Aboriginal and Torres Strait Islander young people 11 2.1.5 Electronic monitoring devices (clause 26) 12 2.1.6 Parental or other support associated with youth bail (clause 21(3)) 27 2.1.7 Presumption against bail (clause 24) 33 2.1.8 Clarification of existing provision (clause 21(6)) 42 2.1.9 Aggravating factor when determining the appropriate sentence (clause 29) 43 2.1.10 Amending the Charter of Youth Justice Principles (clause 33) 45 2.2 Amendments to the Police Powers and Responsibilities Act 2000 46 2.2.1 Use of hand held scanners – knife crime 47 2.2.2 Hooning offences 56 2.3 Suggestions outside the scope of the Bill 60 2.3.1 Indigenous Youth Murri Court in Townsville 60 2.3.2 Breach of bail as an offence 61 2.3.3 Early and community-level intervention, relocation sentencing, and on- country programs 63 2.3.4 Three strikes policy 68 2.3.5 Review of the State Penalties Enforcement Registry and support for victims of crime 68 2.3.6 Curfew for children 16 years and under 69 2.3.7 Raise the minimum age of criminal responsibility 69 2.4 Key issues raised during regional public hearings 69 2.4.1 Mount Isa – 16 March 2021 69 2.4.2 Cairns – 17 and 18 March 2021 70 2.4.3 Townsville – 18 and 19 March 2021 71 2.4.4 Brisbane – 22 March 2021 73 2.4.5 Gold Coast – 26 March 2021 73 3 Compliance with the Legislative Standards Act 1992 75 Legal Affairs and Safety Committee i Youth Justice and Other Legislation Amendment Bill 2021 3.1 Fundamental legislative principles 75 3.2 Rights and liberties of individuals 77 3.2.1 LSA, section 4(2)(a) – rights and liberties of individuals (Clauses 5 and 6) 77 3.2.2 LSA, section 4(2)(a) – rights and liberties of individuals (Clause 26) 80 3.2.3 LSA, section 4(2)(a) – rights and liberties of individuals (Clause 21) 85 3.2.4 LSA, section 4(2)(a) – rights and liberties of individuals (Clauses 13 and 14) 85 3.2.5 LSA, section 4(3)(b) – natural justice 87 3.2.6 LSA, section 4(3)(d) – onus of proof 88 3.2.7 LSA, section 4(3)(f) – protection against self-incrimination 93 3.2.8 LSA, section 4(3)(g) – rights and liberties 95 3.3 Institution of parliament 96 3.3.1 LSA, section 4(4)(a) – delegation of legislative power 96 3.4 Explanatory notes 97 4 Compliance with the Human Rights Act 2019 99 4.1 Human rights compatibility 99 4.1.1 Electronic monitoring devices as a condition of bail for offenders aged 16 and 17 years old in certain circumstances – clause 26 99 4.1.2 Parental or other support associated with youth bail – clause 21 103 4.1.3 Presumption against bail for certain youth offenders – clause 24 106 4.1.4 Aggravating factor when determining the appropriate sentence – clause 29 111 4.1.5 Amending the Charter of Youth Justice Principles – clause 33 114 4.1.6 Providing powers for police to stop a person and use a handheld scanner to scan for knives – clauses 5 and 6 115 4.1.7 Enhancing the existing owner onus deeming provisions for hooning offences - clauses 7-16 119 4.2 Statement of compatibility 122 Appendix A – Submitters 124 Appendix B – Officials at public departmental briefing 127 Appendix C – Witnesses at public hearings 128 Mount Isa – 16 March 2021 128 Cairns – 17 March 2021 129 Cairns – 18 March 2021 129 Townsville – 18 March 2021 129 Townsville – 19 March 2021 130 Brisbane – 22 March 2021 130 Gold Coast – 26 March 2021 132 Statement of Reservation 133 ii Legal Affairs and Safety Committee Youth Justice and Other Legislation Amendment Bill 2021 Abbreviations AASW Australian Association of Social Workers ALA Australian Lawyers Alliance Atkinson Report Report on Youth Justice by Bob Atkinson AO ATSICHS Aboriginal and Torres Strait Islander Community Health Service ATSIWLSNQ Aboriginal and Torres Strait Islander Women’s Legal Service North Queensland Bail Act Bail Act 1980 BAQ Bar Association of Queensland Bill Youth Justice and Other Legislation Amendment Bill 2021 Chief executive Chief executive of the Department of Children, Youth Justice and Multicultural Affairs committee Legal Affairs and Safety Committee CRC Convention on the Rights of the Child DCYJMA Department of Children, Youth Justice and Multicultural Affairs departments Queensland Police Service and the Department of Children, Youth Justice and Multicultural Affairs DYJ Department of Youth Justice EM electronic monitoring EMSU Electronic Monitoring and Surveillance Unit FASD Fetal alcohol spectrum disorder GPS global positioning system Hooning offences type 1 vehicle offences HRA Human Rights Act 2019 ICCPR International Convent on Civil and Political Rights ICCR Institute for Collaborative Race Research IYMC Indigenous Youth Murri Court LAQ Legal Aid Queensland Legal Affairs and Safety Committee iii Youth Justice and Other Legislation Amendment Bill 2021 LSA Legislative Standards Act 1992 NAAJA North Australian Aboriginal Justice Agency NDIS National Disability Insurance Scheme OPG Office of the Public Guardian PPRA Police Powers and Responsibilities Act 2000 QATSICPP Queensland Aboriginal and Torres Strait Islander Child Protection Peak QCCL Queensland Council for Civil Liberties QCOSS Queensland Council of Social Service QCS Queensland Corrective Services QFCC Queensland Family and Child Commission QHRC Queensland Human Rights Commission QLS Queensland Law Society QPS Queensland Police Service SNPs Safe Night Precincts SPER State Penalties Enforcement Registry TCJG Townsville Community Justice Group Tracking device A condition to a grant of bail imposed on certain 16 or 17 year old children condition that the child must wear a tracking device while released on bail UNCRC United Nations Committee on the Rights of the Child YAC Youth Advocacy Centre YANQ Youth Affairs Network of Queensland youth justice Working Together Changing the Story: ‘Youth Justice Strategy 2019-2023’ strategy YJA Youth Justice Act 1999 iv Legal Affairs and Safety Committee Youth Justice and Other Legislation Amendment Bill 2021 Chair’s foreword This report presents a summary of the Legal Affairs and Safety Committee’s examination of the Youth Justice and Other Legislation Amendment Bill 2021. The committee’s task was to consider the policy to be achieved by the legislation and whether the Bill has sufficient regard to the rights and liberties of individuals and to the institution of Parliament. The committee also examined the Bill for compatibility with human rights in accordance with the Human Rights Act 2019. The committee visited a number of regions during its inquiry into the Bill, with public hearings held in Mount Isa, Cairns, Townsville, Brisbane and the Gold Coast. I am grateful to the Member for Traeger, Mr Robbie Katter MP, and Father Michael Lowcock for spreading the word in Mount Isa which resulted in our Mount Isa hearing being the best attended hearing during our regional visits. I would also like to give a big shout out to Barbara Sam, a Kalkadoon woman, for her Welcome to Country and participation at the Mount Isa hearing.