Report Cards

• Article 3: best interests of the child as a primary consideration
• Article 37: the treatment and punishment of children, including their right not to be subject to cruel or inhumane treatment and the principle that detention is a last resort
• Article 39: reintegration into society
• Article 40: the protections given to children who come into conflict with the criminal justice system

Positive developments

NATIONAL: The National Framework for Protecting Australia’s Children 2009-2020

On 25 February 2013, as a part of the National Framework for Protecting Australia’s Children, Megan Mitchell was appointed as the first National Children’s Commissioner. This role involves raising awareness of issues affecting young people, carrying out research in the area and stimulating debate and reviewing commonwealth legislation to ensure that it considers the best interests of children.

In August 2013 the Council of Australian Governments released the National Framework for Protecting Australia’s Children second three-year action plan. [1] The second action plan sets out how the national government, state governments, non-government sector and communities will continue under the National Framework for Protecting Australia’s Children. The focus is on helping vulnerable children and their families through providing support for children of abuse and neglect. The second action plan continues to concentrate efforts towards providing support for Indigenous children and families and introduces a number of new priorities, including early childhood, education, domestic violence, health and disability. While this initiative does not specifically address juvenile justice, it focuses on vulnerable children and families. Many of the child and family welfare issues that are addressed in the second action plan, are risk factors associated with the likelihood of a child coming into contact with the criminal justice system.

WA: Providing help to young offenders with mental health problems

On 8 April 2013 Western Australia’s Department of the Premier and Cabinet announced its plans to provide specialist support to children with disabilities appearing in Perth’s Children’s Court. [2] Support will be provided from mental health specialists, including a psychologist and mental health nurses. The specialists will also prepare personal support plans for individual children.

NSW: Youth on Track

In March 2013, the NSW government launched the Youth on Track scheme, an early intervention program aimed at those most at risk of criminal behaviour. The Youth on Track scheme introduces a system where police and schools are able to refer children who they believe to be at risk. Following this an NGO will work with the children and their families by providing support in the areas that they feel are necessary. The NSW government identified that young offenders are often Aboriginal, suffer from a disability or mental health deficiency, are disengaged from education, have been subject to abuse or neglect, have a history of drug or alcohol abuse and have been exposed to crime. [3]

ACT: Blueprint for youth justice in the ACT

In August 2012 the ACT released its plans to reform the youth justice system. The reforms concentrate on early intervention and prevention initiatives and providing support to those at risk of criminal behaviour, as well as those currently involved in the criminal justice system. The ACT hope to ensure that young people are diverted away from the formal justice system and maintain that detention will be a last resort. Further reforms concentrate on the rehabilitation of offenders and their reintegration into society, with the aim of ensuring that those who enter the youth justice system are able to leave it as soon as possible. [4] These plans have approval from the human rights watchdog. [5]

ACT: Children and Young People Act 2008 (ACT)

In March 2013 the ACT government amended the Children and Young People Act 2008 in order to introduce into legislation the requirement that the Department-General notify a doctor or nurse after the use of force on a child or youth in detention(see s.223(3A)). The amendment also removed the basis of ‘good order’ for conducting body and strip searches. This was a broad criterion that enabled searches to be carried out under the justification that they are required to maintain good order of the facility, although not necessarily for the security of the detention centre.

Developments requiring attention

NATIONAL: Age of criminal responsibility

The age of criminal responsibility in Australia is one of the lowest worldwide at only 10 years old, with the exception of the presumption of doli incapax for children aged between 10 and 14. Between these ages it is necessary for the prosecution to prove that the child knew that what they were doing was wrong. Nevertheless, the Children’s Commissioner for NSW has argued that young children often know ‘right from wrong, but might lack the ability to act accordingly.’ [6] Consequently, the principle of doli incapax in some cases may not offer sufficient protection to young, vulnerable children due to a disproportionate focus on a child’s moral awareness as opposed to their ability to make decisions. [7]

The Committee in its Concluding Observations in June 2012 recommended increasing the age of criminal responsibility in Australia to a more internationally acceptable level. Research by the Jesuit Social Services (JSS), released in February 2013, suggests increasing the age of criminal responsibility to 12. [8] This research found that all of the children first remanded between the ages of 10 and 12 in Victoria were known to the child protection system, which prompted Jesuit Social Services to insist that these children be dealt with through the welfare system and not the criminal justice system. [9] JSS further noted that children who were first remanded between the ages of 10 and 12 were more likely to re-enter the criminal justice system than those who were first remanded at an older age. [10] Increasing the age of criminal responsibility has gained support from the President of the Children’s Court of Victoria, Paul Grant. [11] Despite local and international calls to increase the age of criminal responsibility in Australia, the National and State governments have shown no intention to consider this issue.

NATIONAL: Young people with a disability or mental health problem in the criminal justice system

Children with a disability continue to be disproportionately represented in the criminal justice system. The Committee in its Concluding Observations in June 2012 recommended that Australia provide an alternative to judicial proceedings for young people with a mental illness or disability who come into contact with the criminal justice system. Nevertheless, aside from the mental health court diversion plan introduced in Western Australia, little has been done at a national or state level to break down the barriers specifically faced by young people with a disability who come into contact with the justice system.

QLD: 17 year old children in the adult justice system in Queensland

In their Concluding Observations in June 2012, the Committee recommended that Queensland take 17 year olds out of the adult justice system. Nevertheless, in Queensland 17 year olds continue to be dealt with through the adult criminal justice system. This has led many to criticise Queensland for failing to consider the best interest of the child, a requirement of Article 3 of the Convention. [12]

WA: Children placed in adult correctional facilities: Hakea prison

In their Concluding Observations, the Committee urged Australia to allocate the necessary resources to ensure that children and adults are placed in separate correctional centres. However, child detainees in Western Australia were moved to the adult Hakea prison on 20 January 2013 following a riot that caused serious damage to the state’s only youth detention centre, Banksia Hill. Placing children in adult correctional centres is contrary to Article 37(c) of the Convention which states that children placed under detention must be separated from adults.

Young people remain in Hakea prison in ‘less than optimal conditions.’ [13] The detainees are not due to be returned to the youth detention centre until August 26th. [14]

NATIONAL: Youth incarceration on the rise

A report published by the Australian Institute of Criminology in May 2013 reveals that youth incarceration is increasing. [15] The report also identifies that the number of indigenous young people in detention is increasing more rapidly than the number of non-indigenous young people in detention. [16] An increase in youth incarceration rates casts doubt over the principle codified by Article 37(b) of the Convention that detention ought to be a last resort when sentencing young offenders. This has led to calls for a greater focus on prevention and early intervention initiatives, more support for vulnerable children who are most at risk of offending and a greater focus on the alternatives to detention. [17]

Negative development

QLD: Queensland’s ‘Safer streets crime action plan- Youth justice’

Jarrod Bleijie, the Attorney General and Minister for Justice, Queensland in March 2013 announced a number of proposed reforms to the youth justice system of Queensland. [18] These reforms include the following:

• Introducing boot camps as an alternative to detention and continuing with early intervention boot camps
• Allowing the names of young offenders to be made public
• Making breach of bail a criminal offence
• Making a person’s juvenile criminal history available if they are being sentenced as an adult
• Removing the principle detention is a last resort
• Automatically transferring young offenders to an adult prison when they turn 18

While Jarrod Bleijie has argued that the aim of the action plan is to ensure a safer community by holding young people to account for their actions, these plans raise a number of human rights concerns and have caused the National Children’s Commissioner to threaten a legal challenge should the proposals go ahead. [19]

The main concerns that have been raised in submissions to the Queensland Government are:

• There is evidence to suggest that the disciplinary nature of boot camps is ineffective. [20] The HRLC have encouraged the Queensland government to ensure that if the boot camps are to continue that they must focus on rehabilitation. [21]
• Publishing the names of offenders is likely to be counterproductive, interfere with a young offender’s chance of rehabilitation and increase the rate of recidivism. [22]
• Taking away the judicial discretion to record a conviction does not consider the best interests of the child, as required by Article 3 of the Convention. [23] It also doesn’t account for the fact that children grow out of criminal behaviour. [24]
• Making breach of bail an offence will increase a child’s interaction with the criminal justice system. [25]  It also goes beyond bail law and it is unlikely to reduce reoffending. [26]
• The automatic transfer of offenders to adult prison when they turn 18 does not adequately reflect the government’s goal to reduce over-crowding. The government should instead focus their efforts upon the number of children currently on remand. [27]
• Removing the principle that the detention of child offenders is a last resort is contrary to Article 37(b) of the Convention on the rights of the child. [28] Evidence shows that detention is ineffective at reducing reoffending and ‘by definition [it] disengages people from society.’ [29]

WA: Expansions to Western Australia’s mandatory sentencing laws

Mandatory sentencing laws prevent judicial flexibility in the sentencing for certain criminal offences. This prevents judges from taking into consideration the particular circumstances of the crime or the characteristics of the offender. The Committee has recommended that Western Australia abrogate their mandatory sentencing laws.

On 26 June 2013, however, the Attorney General and Corrective Services Minister’s office for Western Australia announced a plan to extend mandatory sentencing laws to include offences against youth custodial officers. [30] These proposals are contained in the Criminal Code Amendment Bill (No2) 2013.

• The national and state governments should consider increasing the age of criminal responsibility.
• States should take action to remove the barriers young people with a disability face when entering the criminal justice system. State governments should implement measures to divert disabled and mentally ill young people from the formal justice system.
• Queensland should remove 17 year olds from the adult justice system. Queensland should also reconsider its plans for youth justice reform. In particular it should abandon proposals to introduce of boot camps as an alternative to detention, allow the names of young offenders to be made public, make breach of bail an offence, make juvenile criminal history available when sentencing an adult, remove the principle that the detention of young people should be a last resort and automatically transfer young offenders to an adult prison when they turn 18. Queensland should approach youth justice reform from an evidence based, human rights perspective, with a focus on early intervention, prevention and rehabilitation.
• The children and young people at Hakea prison should be placed in a youth detention centre as soon as possible. Adequate resources should be allocated to ensure that children are not placed in adult correctional centres.
• Western Australia should abandon plans to extend their mandatory sentencing laws and should consider abolishing their current mandatory sentencing laws.
• All states and territories should take measures to reduce the rising number of incarcerated young people. Specifically, support should be provided to vulnerable and at risk children and their families, measures should be introduced to ensure that detention is the last resort and early intervention and prevention initiatives should be engaged. States need to provide the necessary support to Aboriginal children, children with a disability, children from low socio-economic backgrounds and children from remote and rural areas.

1. Council of Australian Governments, ‘Second three-year action plan, 2012-2015: Protecting Children is Everyone’s Business: National Framework for Protecting Australia’s Children 2009–2020,’ August 2012 available at http://www.fahcsia.gov.au/sites/default/files/documents/09_2012/second_action_plan.pdf (accessed 8 August 2013)
2. WA Department of the Premier and Cabinet, ‘Media Statement: More help for young offenders with mental illness, April 2013, available at http://www.mentalhealth.wa.gov.au/Libraries/pdf_docs/More_help_for_young_offenders_with_mental_illness_1.sflb.ashx (accessed 8 August 2013)
3. For more information see the Youth on Tract Fact Sheet, available at http://www.youthontrack.lawlink.nsw.gov.au/agdbasev7wr/_assets/yot/m771002l2/yot_fact_sheet.pdf (accessed 8 August 2013)
4. ACT Government, ‘Blueprint for Youth Justice in the ACT 2012-22’, August 2012, available at http://www.dhcs.act.gov.au/__data/assets/pdf_file/0009/337590/Blueprint_for_Youth_Justice_in_the_ACT_2012-22.pdf  (accessed 8 August 2013)
5. C.Knaus, ‘Youth plan gets nod from rights watchdog,’ ACT News, 16 August 2012, available at http://www.canberratimes.com.au/act-news/youth-plan-gets-nod-from-rights-watchdog-20120815-249ag.html (accessed 8 August 2013)
6. As reported in G.Jacobsen, ‘Age of criminal consent: 16 or 8,’ Sydney Morning Herald, April 2012, available at http://www.smh.com.au/nsw/age-of-criminal-consent-16-or-8-20120428-1xrh0.html (accessed 8 August 2013)
7. See the research by Catherine Elliot, as referred to in G.Jacobsen, ‘Age of criminal consent: 16 or 8,’ Sydney Morning Herald, April 2012, n.6 above
8. Jesuit Social Services, ‘Thinking outside: Alternatives to remand for children’ Summary report, February 2013, pp. 20-21, available at http://www.jss.org.au/files/Docs/policy-and-advocacy/publications/thinking_outside_summary_report.pdf (accessed 8 August 2013)
9. Ibid. p.20
10. Ibid. p.20
11. P.Karvelas, ‘Judge backs raising the age of criminal responsibility to 12,’ The Australian, 26 February 2013, available at http://www.theaustralian.com.au/business/legal-affairs/judge-backs-raising-the-age-of-criminal-responsibility-to-12/story-e6frg97x-1226586377394 (accessed 8 August 2013)
12. See for example, CCYPCG, ‘Seventeen Year Olds in Queensland’s Adult Correctional Facilities: Contesting the Justifications for Keeping 17 year olds in adult correctional facilities,’ Dec 2012, available at http://www.ccypcg.qld.gov.au/pdf/publications/papers/Contesting-the-justifications-for-keeping-17-year-olds-in-adult-correctional-facilities.pdf (accessed 8 August 2013)
13. See Amnesty International, ‘Kids Continue to Languish in WA adult jail’, 4 July 2013, available at http://www.amnesty.org.au/news/comments/32208/ (accessed 8 August 2013)
14. The Australian, WA teen prison riot ‘entirely predictable,’ 7 August 2013, available at http://www.theaustralian.com.au/news/breaking-news/wa-teen-prison-riot-entirely-predictable/story-fn3dxiwe-1226692836817 (accessed 8 August 2013)
15. See the AIC report ‘Australian Crime Facts and Figures 2012,’ available at http://www.aic.gov.au/media_library/publications/facts/2012/facts12.pdf (accessed 8 August 2013) , p.132
16. Ibid. p.133
17. For example Australian Youth Affairs Coalition, ‘Insights from the coalface: The value of justice reinvestment for young Australians,’ May 2013, available at http://www.ayac.org.au/uploads/JRinsightsfromcoalface.pdf (accessed 8 August 2013)
18. See his ‘Safer Streets Crime Action Plan- Youth Justice,’ March 2013, available at http://www.justice.qld.gov.au/__data/assets/pdf_file/0007/177775/safer-streets-crime-action-plan-youth-justice.pdf (accessed 8 August 2013)
19. See A.Guest, ‘Qld’s juvenile justice plan impinges human rights: Commissioner,’ ABC News 27 July 2013, http://www.abc.net.au/news/2013-07-27/juvenile-justice-plan-impinges-children27s-rights-commissioner/4847788 (accessed 8 August 2013)
20. J.O’Leary, B.Watt, S. O’Toole and P.Keyzer on behalf of the Youth Justice Research Division of the Centre for Law, Governance and Public Policy, Faculty of Law, Bond University, ‘Submission in response to the Safer Streets Crime Action Plan–Youth Justice,’ June 2013, available at http://lawgovpolicy.files.wordpress.com/2013/07/yjrd-submission.pdf (accessed 8 August 2013) p.4, p.10
21. Human Rights Law Centre, ‘A Human Rights Approach to Youth Justice Reform- Submission to the Department of Justice and Attorney General of Queensland,’ June 2013, available at http://www.hrlc.org.au/wp-content/uploads/2013/07/HRLC_Submission_Queensland_Youth_Justice_Reforms.pdf (accessed 29 August 2013) p.8
22. Human Rights Law Centre, ‘A Human Rights Approach to Youth Justice Reform- Submission to the Department of Justice and Attorney General of Queensland,’ p. 11; J.O’Leary, B.Watt, S. O’Toole and P.Keyzer, ‘Submission in response to the Safer Streets Crime Action Plan–Youth Justice,’ June 2013, pp.9-10, Queensland law society, ‘Submission: Safer Streets Action Plan- Youth Justice,’ June 2013, available at https://www.qls.com.au, (accessed 8 August 2013) p.8
23. Human Rights Law Centre, ‘A Human Rights Approach to Youth Justice Reform- Submission to the Department of Justice and Attorney General of Queensland,’ n.21 above p. 12
24. J.O’Leary, B.Watt, S. O’Toole and P.Keyzer, ‘Submission in response to the Safer Streets Crime Action Plan–Youth Justice,’, p.5; Queensland law society, ‘Submission: Safer Streets Action Plan- Youth Justice,’ p.10
25. Human Rights Law Centre, ‘A Human Rights Approach to Youth Justice Reform- Submission to the Department of Justice and Attorney General of Queensland,’ n.21 above p.13
26. J.O’Leary, B.Watt, S. O’Toole and P.Keyzer, ‘Submission in response to the Safer Streets Crime Action Plan–Youth Justice,’ p. 6
27. Human Rights Law Centre, ‘A Human Rights Approach to Youth Justice Reform- Submission to the Department of Justice and Attorney General of Queensland,’n.21 above p.14; Queensland law society, ‘Submission: Safer Streets Action Plan- Youth Justice, pp.14-15
28. Human Rights Law Centre, ‘A Human Rights Approach to Youth Justice Reform- Submission to the Department of Justice and Attorney General of Queensland,’ n.21 above pp. 8-9
29. J.O’Leary, B.Watt, S. O’Toole and P.Keyzer, ‘Submission in response to the Safer Streets Crime Action Plan–Youth Justice,’ p. 8
30. See the Media Statement ‘Youth Custodial Officers to be protected by law’, June 2013, available at http://www.mediastatements.wa.gov.au/Pages/StatementDetails.aspx?StatId=7517&listName=StatementsBarnett