The Queensland supreme court has ordered the urgent transfer of three children from police watch houses by 10pm on Friday, after the state government conceded it had no lawful basis for detaining them in police holding cells.
Advocates say the admission by the state’s solicitor general, Gim Del Villar KC, raises concern that potentially hundreds of children have been detained in Queensland’s police watch houses, alongside adults, unlawfully.
A Cairns-based youth organisation, Youth Empowered Towards Independence, lodged the case on Wednesday on behalf of several children, seeking a writ of habeas corpus and their transfer to a youth detention centre.
Lawyers for the organisation initially sought to argue that the state’s practice of holding children in watch houses for extended periods, due to a lack of space in detention centres, was not lawful.
But the basis for the case changed by “happenstance” on Friday, when Del Villar told the court he could not produce specific court orders that provided for children to be held on remand in police custody, pending their transfer to youth justice.
After the concession, Justice Martin Burns ordered the three children be transferred to a youth detention facility by 10pm on Friday.
For several years, the Queensland government has held children for extended periods of time, in some cases up to 40 days, alongside adults in police watch houses, in cells designed to be occupied for less than 48 hours.
The situation has led to growing human rights concerns.
Under the Queensland Youth Justice Act, a court that remands a child in custody “must order” the police to deliver the child “as soon as practicable” into the custody of youth justice.
Guardian Australia understands that the government’s legal justification for keeping children in watch houses is that it is not “practicable” for children to be transferred out of police custody when there is not a suitable place for them inside a youth detention centre.
Del Villar said that children’s court decisions remanding the three children did not contain any specific order relating to their transfer by police to youth justice; on that basis, the state conceded that an order should be made transferring them out of police custody.
The situation meant that Burns was not ultimately required to consider the initial claim by the applicant – which would have amounted to a test case – that watch house detention is outright unlawful.
It is understood an email was sent to magistrates on Friday, advising them about how to word orders when remanding children.
“The detention of children is extremely serious and must occur only according to law,” the director of human rights and civil law practice at Caxton Legal Centre, Bridget Burton, said.
“The Department of Youth Justice has been overseeing the unlawful detention of these three children and potentially many other children over a substantial period of time.
“This is a serious breach of the human rights of children, and frankly quite shocking.”
The chief executive of Youth Empowered Towards Independence, Genevieve Sinclair, said that children needed to be detained in places where they have the chance to be rehabilitated, with access to education, support services and contact with family.
“Our communities can’t be safe while the system is making children angrier and more disconnected,” Sinclair said.
“Inhumanely detaining children creates crime and makes us all less safe.
“This is another failure in the youth detention systems. It’s time for this practice to be stopped immediately.”
Numbers of children held in police watch houses fluctuate from day to day. On some days earlier this year, more than 100 children were in adult watch houses across the state.
The situation is the result of government policies that have demanded courts remand more children; the flow-on effect has been to leave three youth detention centres – Brisbane, West Moreton and Cleveland (Townsville) – unable to hold all young people in custody.
