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The Youth Justice Reform Bill
As Victoria’s children’s commissioners, we thought it well established and accepted in this state that we need a separate criminal justice response to children, which should be humane and focused on rehabilitation. The past year has shown us this is not the case. The media and political narrative has shifted further and faster from these accepted principles than we would have thought possible.
The latest measure to respond to community concerns about child and youth offending is the Youth Justice Reform Bill, currently before the Victorian Parliament.
The introduction of this Bill follows more than a year of concerted media and political focus on children who offend. We have seen weekly, at times daily, stories about teenagers engaged in anti-social, often violent behaviour. The community has become increasingly alarmed by well-publicised examples of brazen offending by young people. At the same time, long standing problems within youth justice centres have manifested publicly in incidents and disturbances that have rightly captured the community’s attention and drawn concern. Throughout the year each story has fuelled calls for a tougher, more punitive approach to ‘teen thugs’.
Since the introduction of the Bill, advocates have spoken out. More than 50 health, community and legal organisations signed a letter calling on the Victorian Government not to proceed with the legislation until it releases and acts on the findings of a separate review of youth justice policy recently completed by expert advisors James Ogloff and Penny Armytage. The Victorian Equal Opportunity and Human Rights Commission rightly advised the Scrutiny of Acts and Regulation Committee of Parliament that the Bill may unreasonably limit children’s human rights in some important respects.
The principles of youth justice
Our functions as children’s commissioners include providing advice to government on policies affecting children and we have done so, in some detail. Amid the current debate on the Youth Justice Reform Bill we ask commentators and policy makers to pause and take stock. In Victoria, we have followed some fundamental principles that have led our state to boast low youth crime and low youth custody rates compared to other parts of Australia.
The first principle is that we need a separate and specialist system tailored to address the differences between children and adults. This is a matter of science - teenagers’ brains are still developing, they have lower consequential thinking, they have lower capacity for self-regulation and they are more susceptible to peer pressure. The need for a separate and special approach is also based on the fact that children have a far higher prospect of rehabilitation than adults. Two-thirds of children in Victoria’s youth justice centres are themselves the victims of childhood abuse and trauma. In our youth justice system, we have not just an opportunity, but an obligation to address the causes of their offending. The Youth Justice Reform Bill will be a significant departure from this fundamental principle, providing that children 16 years or older will be tried in the adult courts for some offences.
Another principle is that young people over 18, while not legally children, are still worth keeping out of the adult prison system in some circumstances. Again, this is based on evidence that young people’s brains are still developing in their early 20s, and serving time in an adult jail is more likely to entrench that young person as a long-term offender. The Bill limits the use of this approach, despite the system proving highly effective when used in the right way for young people with good prospects of rehabilitation.
Punitive approaches don’t work
Finally, a fundamental principle supported by United Nations instruments and agreements is that the primary purpose of a youth justice system should be rehabilitation, not punishment. Various aspects of the Youth Justice Reform Bill, if passed, will result in longer custodial terms for children who offend, particularly for offences they commit while in a youth justice centre.
This approach ignores very clear evidence: longer sentences do not work to stop children and young people from offending, and they do not reduce the risk of reoffending. The Bill increases punishment for children and young people for a situation that the state has, in some cases, facilitated. Yes, criminal acts are not acceptable and children must take responsibility for damaging property or using violence. But there is no question that long standing deficiencies in infrastructure, staffing levels, staff training and incident response capability have directly contributed to disturbances in youth justice centres.
Let’s focus on rehabilitation
Not all of the reforms proposed in the Youth Reform Bill depart from the fundamental principles of our youth justice system. Some aspects, such as youth diversion and youth control orders are positive and should support the goal of effective rehabilitation.
When children encounter the criminal justice system, their risk of reoffending increases. As children’s commissioners, we have repeatedly called for the police and courts to have available more and better measures to keep children away from the criminal justice system. The state-wide youth diversion scheme is a step in the right direction, provided it is accompanied by the right resources, supports and programs, and a strong, consistent approach to police warnings and cautions.
For more serious offending, and despite their name, youth control orders offer the potential for children to receive services, supports and treatments to address the causes of their offending while under close supervision in the community and subject to judicial monitoring. Aboriginal children, so vastly over-represented in our youth justice system, must be able to access services and programs specific to their needs. This is not a soft option and may be far more effective in stopping offending than a period spent in custody.
We share the community’s interest in reducing crime, increasing safety and creating an effective youth justice system safe for children, young people and staff. But the evidence is clear: being punitive will not deliver these results. We need more sophisticated ways to tackle the underlying causes of serious youth crime, to assess and intervene effectively with those caught up in serious offending. This requires more than ‘addressing community concern’ about youth crime. It means holding fast to the fundamental principles on which our youth justice system is based, and to develop our systems further.
Commissioner for Children and Young People
Andrew Jackomos PSM
Commissioner for Aboriginal Children and Young People