Common(wealth) Knowledge #118: UN experts pressure Queensland to repeal 'adult crime, adult crime' laws

Report from UN experts demonstrates difficulties in human rights enforceability in Australia.

In a joint report on Wednesday, two United Nations Special Rapporteurs condemned Queensland’s ‘adult crime, adult time’ legislation for violating the basic human rights of children, especially Indigenous children.

The report by the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment on Punishment and the Special Rapporteur on the Rights of Indigenous Peoples reflects the issues caused when the Westminster system interacts with the nature of international law.

Although the report considered the various Australian youth criminal justice systems, it took particular offence to the Queensland one. It was concerned that the punishments for children were disproportionate to the offences, and for an emphasis on criminal punishment instead of rehabilitation and restoration, contrary to sentencing principles that used jail time as a ‘last resort.’

Although the report called on politicians to vote against the legislation on Wednesday, the Making Queensland Safer (Adult Crime, Adult Time) Amendment Bill 2025 was passed on Thursday night.

The Making Queensland Safer Act 2024 (Qld) and the new Bill include broader police powers for weapons searches in public places and removing limits on some serious offences which had previously required sentencing judges to take their age into account.

Under the new laws, while sentencing judges may consider age, they are no longer obligated to, and sentencing caps have been lifted.

The protection against torture and cruel, inhuman or degrading punishment is enshrined in section 17 of the Human Rights Act 2019 (Qld). Relevantly, section 33(3) also states that a child who is convicted of a criminal offence “must be treated in a way that is appropriate for the child’s age.”

While the youth justice system reforms have been passed, the Queensland government has not repealed section 33(3), indicating that there is an intention to uphold it as a general principle.

Rather, the Queensland government relied on section 43 to waive the need to comply with section 33(3), making an ‘override declaration’ to prevent the Act from applying. This only applies in “exceptional circumstances,” and a statement must be read to Parliament explaining why the declaration was sought.

Importantly, section 45 prevents the Queensland Supreme Court from overturning a declaration, in large part because courts refrain from ruling on ‘public interest’ decisions made by Parliament.

The limited enforceability of human rights legislation has two key causes, being the Westminster system and the nature of UN Conventions.

The Westminster system

Australia inherited the doctrine of ‘parliamentary sovereignty’ from the UK, which gave Parliament free reign to pass whichever laws it desired, as it acted on the ‘will of the people.’ Most rights were enforced by the courts through common law, but could be overridden if there was a ‘clear intention’ to do so.

While section 48 requires the Supreme Court to interpret legislation to be consistent with human rights “to the extent possible,” section 45 reflects the Westminster approach.

Only the Australian Constitution contains rights that cannot be overridden by any legislative body. The Constitution is the ‘Australian experiment’ which was the first true application of an US-style written constitution to the Westminster system. The colonies already had existing Westminster systems, which were maintained after Federation.

Even then, most rights were left in the hands of the common law, rather than a Bill of Rights. Any federal legislation creating human rights can still be overridden. 

International law

The United Nations and similar bodies are relatively recent creations. They were created in an international system of ‘state sovereignty,’ which allowed states to do anything they wished within their own borders. In many ways, this is the same as parliamentary sovereignty.

As a result, all treaties and conventions are voluntary and their enforcement depends on the willingness of states.

Special Rapporteurs serve as observers which report on the application of their respective treaties, identifying breaches, but have no legal power to enforce treaties. 

This gives rise to the principle of the ‘lowest common denominator.’ To ensure that as many states as possible agree to the treaty, international bodies will only apply a standard of human rights that all countries can agree to.

The Commonwealth government has limited powers under the Constitution. As such, the only way to protect human rights is to use the ‘external affairs power’ to adopt international treaties signed by Australia into domestic law.

However, the lowest common denominator means that it is difficult to determine exactly how a human right should be protected, because if it isn’t sufficiently based on the treaty, it is unlawful.

For example, the Racial Discrimination Act 1975 (Cth) relies on the Convention on the Elimination of all Forms of Racial Discrimination, but the Commonwealth government cannot adopt the UN Declaration on the Rights of Indigenous Peoples, as a ‘declaration’ isn’t sufficiently binding.

Australia’s solution is the doctrine of ‘concurrent jurisdiction,’ which relies on a federalist structure of government.

States, and to a lesser extent territories, can pass broad human rights legislation. This is complemented by federal legislation where possible, and the few constitutional rights which exist. The Commonwealth government tends to avoid ‘stepping on the toes’ of the states.

Although Australia has ratified the Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Punishments, they have not been formally adopted into legislation; instead the Commonwealth government has deferred to the states.

And this is the ultimate cause of the conflict. Australia, not Queensland, is a party to the relevant treaty, which is itself voluntary in nature. The Queensland government has no treaty obligations to the United Nations, and parliamentary sovereignty prevents having state-level constitutional rights that cannot be altered by Parliament.

Indeed, the Optional Protocol to the Convention Against Torture requires the Commonwealth government to create a ‘National Preventive Mechanisms’ scheme and oversight body, which the Queensland government has failed to sign up for.

As there are currently no enforceable legal obligations on the Queensland government, this becomes an entirely political issue. UN Special Rapporteurs can comment on the government’s actions, and the government has conceded that there are rights violations, but it is within its legal rights to make an override declaration.

The Bill awaits royal assent from the Governor before it will pass into law.