Last updated 1 December 2020
Section 33 of the Human Rights Act 2019 (Qld) (Human Rights Act) recognises that children in criminal processes are especially vulnerable due to their age, and that they require special protections.
Subsection 33(1) ensures that children detained must be segregated from all detained adults. This acknowledges that children have greater needs than adults and the risks associated with children being detained with adults.
Subsection 33(2) provides that when accused, children must brought to trial as quickly as possible.
Subsection 33(3) states that when convicted, children must be treated in a manner appropriate for their age. This right may be interpreted to include an entitlement to access education, recreational activities, adequate medical care and communication and visitation from the outside world.
Amendments to the Corrective Services Act 2006 (Qld) and the Youth Justice Act 1992 (Qld) (Youth Justice Act) have limited the scope of subs 33(1) of the Human Rights Act. The effect of these amendments is that an act or decision in relation to the housing of a child detainee or adult prisoner will not be unlawful where it is permitted in accordance with additional relevant considerations under those laws.
For example, under the Youth Justice Act, a decision by the chief executive about the segregation of children detained without charge will not contravene the Human Rights Act only because their consideration also takes into account the safety and wellbeing of the child detained without charge and other detainees, and the chief executive’s responsibilities and obligations under s 263 of the Youth Justice Act.
The rights of children in the criminal process will also be subject to the general limitation provision in s 13 of the Human Rights Act. This provides human rights may be subject under law to reasonable limits, which are justified in a free and democratic society. See ‘Human Rights may be Limited’ for further explanation.
The rights of children in the criminal process may be engaged:
- when considering whether to charge and prosecute a child aged under 14 years in Queensland, as the Criminal Code Act 1899 (Qld) states that a child aged between 10 and 14 years can only be criminally responsible if they had the capacity to know they should not do the criminal act
- where a child has been accused of committing an offence, in ensuring that positive steps are taken to conduct the trial quickly. Where a matter is not brought before trial quickly, the right in s 33 may be raised to lodge an application to permanently stay the prosecution
- during directions about how the criminal proceeding should be conducted against children (e.g. to minimise formality), and in applications for bail brought by children
- during appeals against sentence, where there has been a lengthy delay between an offence and the child being sentenced.
These examples have been adapted from Australian cases. They are provided by way of example only, and are not a substitute for legal advice.