‘Ultimately it (detaining young people) will lead to worse outcomes for children and young people, and it will make the community less safe.’
Associate Prof. Catia Malvaso lead researcher in child protection and criminal justice
The issues
Australia ratified the Convention on the Rights of the Child in 1989 but there is still no national strategy for protecting those rights. Youth crime is a matter for the states and territories and rates of crime vary across the country however the so-called crisis of youth crime is a beat-up. It is now urgent that an informed, uniform approach is taken, led by the Commonwealth, with NT and Qld sinking to new lows, imprisoning children as young as 10.
Over the period of 2008 to 2023, rates of youth crime in all states fell dramatically with a very small upturn in the latest year. According to the Australian Bureau of Statistics, youth crime is shrinking faster than adult crime.
People want to be safe from crime but the real crimes are the scandalous ways in which politicians have scared people into thinking harsher penalties are needed for young offenders.
Spit-hooded and tied to chairs, brutal ‘management’, humiliation, solitary confinement, separation and even death are some of the extreme treatments some young people endured in prison, often in the hands of officers with little or no training for working with youth.
Academics, criminologists, commissioners for children, Amnesty International, the Australian Law Council, the AMA and many more, agree that incarceration is extremely harmful to children and that there is no credible evidence that locking children up at the age of 10 to 14 reduces crime in the long term.
Our plan
- raise the age of criminal responsibility from 10 to at least 14 in all states and territories
- early intervention and rehabilitation to address underlying causes and divert young people from becoming involved in criminal activities
- diverse sentencing options, buttressed by integrated social support services to promote rehabilitation and divert young people from re-offending
- treatment of young offenders to meet Australia’s international obligations on the rights of children and young persons and Optional Protocol to the Convention Against Torture
- formal education for youth in prisons with specialised teaching staff
- greater access to culturally appropriate legal assistance for children and young people, particularly First Nations
- measures to improve exit strategies such as wraparound supports, transition assistance, throughcare and appropriate, safe and affordable accommodation (including bail accommodation) to prevent youth homelessness and avoid future contact with the criminal justice system.
- public resources allocated according to disadvantage
- cognitive behaviour programs and mental health services for vulnerable children and youth
- the principle of detention as last resort legislated and all mandatory sentencing laws that may hinder a judge’s ability to consider mitigating circumstances to be removed when applying the law to children
- mediation involving families,
- intensively supervised probation, community service and good behaviour bonds
- programs targeting the most disadvantaged indigenous youth and children exposed to substance abuse and violence
- stronger protection against unethical, irrelevant and/or misleading press reporting involving children
The evidence
The UN Committee on the Rights of the Child encourages state parties to ‘take note of recent scientific findings and to increase their minimum age to at least 14 years’.
The Australian Human Rights Commission report – Help Way Earlier! – transforming child justice for safety and wellbeing, recommends a national taskforce for reform of child justice systems, a cabinet minister for children, a ministerial council for child wellbeing and a national children’s act as well as a human rights act incorporating the Convention on the Rights of the Child
Professor Robson of the AMA says
The medical evidence is clear. Incarceration harms children mentally and impairs their physical development. Most children in prison already come from backgrounds that are disadvantaged. These children often experience violence, abuse, disability, homelessness, and drug or alcohol misuse.
Criminalising the behaviour of young and vulnerable children creates a vicious cycle of disadvantage and increases the likelihood of ongoing experiences within the legal system.
In the Northern Territory, children are locked up four times more than anywhere else in Australia and the latest NT Youth Detention Census shows that 97 percent of young people behind bars are Aboriginal. In Queensland a magistrate can sentence a child to detention for up to 5 years. The Country Liberal Party government recently toughened bail legislation, keeping more young people in remand, and gave police extra powers for law and order.
The ICRC says detention can be stressful and dangerous. It entails physical, emotional and; intellectual deprivation, and even resilient adults find it hard to cope with. For children therefore, detention is likely to have a particularly severe and lasting effect. That is why they should be detained only as a last resort and for the shortest possible time.
Human Rights Watch and UNICEF Australia say children are exposed to greatly increased risks of extreme sexual, physical and mental abuse while they are detained. While indigenous, or children from disadvantaged circumstances are much more likely to be detained under these conditions.
Ultimately, responsibility lies with our governments. Prolonged solitary confinement and use of force against children may amount to torture by the government responsible for their care. And as a signatory to the UN Convention on the Rights of the Child, Australia has plainly failed in its promise that “every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person.”’
(UNICEF Australia, 2016)
‘Liana Buchanan, the Commissioner for Children and Young People, said Victoria should raise the age to 14 as quickly as possible. She says the cause of a child’s antisocial or violent behaviour needed to be addressed. Introducing children to the criminal justice system increased the risk of them reoffending and the younger they were, the more likely they were to end up in a cycle of offending. Those who are opposed to raising the age are arguing against what is in the interests of community safety. I have to say, as children’s commissioner, the irony of that frustrates me enormously because the evidence cannot be clearer,”
(Ed. The Age, 21/3/24)
In 2016 the guards at the Don Dale Detention Centre (NT), were found to have routinely inflicted horrific methods of control and restraint against detained youth. The royal commission ‘Australia’s Shame’ was established to investigate the allegations. It found that guards at Don Dale used excessive summary violence against detainees – it was systemic. (Youth offenders in Don Dale have now been relocated to a new youth detention facility at Holtze.)
We can blame the guards at Don Dale Detention Centre for their abhorrent treatment of young children – and they should be held fully accountable under the law – but ABC Four Corners confronted Australia with a bigger and more troubling question: how did we as a nation let this happen to children, in 2016?
No one is asserting that a detainee’s behaviour is always acceptable but, as a civilised society, we must responsibility apply laws properly, fairly and with due process.
Queensland recently passed ‘adult crime, adult time’ laws – here’s what’s changing. A child as young as ten can now be sentenced as an adult for 13 of the state’s most serious offences, including murder.
References:
‘Welfare, justice, child development and human rights: a review of the objects of youth justice legislation in Australia’. (Malvaso, C., et. al., 20/02/2024), retrieved from https://doi.org/10.1080/ 10345329.2024.2313784.
https://www.aihw.gov.au/reports/australias-welfare/youth-justice
https://obriensolicitors.com.au/nt-age-of-criminal-responsibility-3
https://www.unicef.org.au/stories/five-ways-stop-abuse-of-children