The Australian Youth Incarceration Crisis
Yongah Hill Immigration Detention Centre.
As the Australian juvenile justice system grapples with deep-rooted issues of over-representation and recidivism, a comprehensive examination of the intricate factors influencing the demographics within this system becomes imperative. Beyond surface-level considerations of criminal culpability, understanding the root causes of incarceration requires a nuanced analysis of the underlying socio-economic, educational, substance abuse, physical and mental health issues that contribute to the likelihood of a young person being incarcerated. Only once these issues are addressed will real change be evident.
Australia’s legal framework establishes distinct thresholds for criminal responsibility based on the age of the offender, up until the point they reach adulthood. The minimum age of criminal responsibility was established on the principle of doli incapax, namely, that a child is incapable of committing a crime because they lack the capacity to sufficiently distinguish right from wrong. In Australia, children under ten years of age are protected fully by the principle of doli incapax and cannot be charged with a crime. [1] Children between ten and fourteen years of age have a ‘rebuttable presumption’ of doli incapax, meaning that they can be charged with a crime if there is evidence they knew the act was seriously wrong. Children aged between fourteen and eighteen years of age cannot rely on doli incapax, however will still have their conviction recorded in the Children’s Court.
The United Nations Committee on the Rights of the Child has criticised Australia for maintaining a criminal age of responsibility far younger than that of most developed countries. [2] Hugh de Kretser, Executive Director of the Human Right Law Centre describes Australia’s low criminal age of responsibility as an issue of ‘significant international concern’ and ‘out of step’ with international standards’. [3] Haysom highlights, a child’s contact with the criminal justice system, particularly between the ages of ten and fourteen is strongly associated with recidivism and is considered ‘criminogenic.’ [4] This demonstrates a different strategy must be implemented to address the youth incarceration crisis.
Of particular concern within Australia is the continual over-representation of First Nations youth within the juvenile justice system. [5] For the last five years, Aboriginal and Torres Strait Islander people have remained the most incarcerated people on earth. [6] Despite First Nations people making up less than 5% of the community, they comprise more than half of the young people under the supervision of juvenile justice Australia wide. [7] Additionally, First Nations deaths in custody are disproportionately high, with over 441 Indigenous Australians having died since 1991. [8] This disparity highlights the need to address how the legal and custodial system operates with regard to First Nations youth.
Critics of the custodial system employed by juvenile justice argue the current approach to youth justice is overly punitive, negating rehabilitation and reintegration strategies in favour of detention. [9] Recent legislative developments, like the Australian government’s $4.2 million investment into alternative sentencing, such as circle sentencing across 12–20 regions in New South Wales has demonstrated the desire of the government to address the issue. [10] Although a step in the right direction, addressing the issue of youth incarceration will hinge on a multi-pronged approach prioritising rehabilitation, community involvement, and culturally sensitive practices.
[1] Children (Criminal Proceedings) Act 1987 (NSW) s 5; Terence Bartholomew, ‘Legal and Clinical Enactment of the Doli Incapax Defence in the Supreme Court of Victoria, Australia’ (1998) Psychiatry Psychology and Law 95-105.
[2] Leigh Haysom, ‘Raising the Minimum Age of Criminal Responsibility to 14 Years’ (2022) 58(9) Journal of Paediatrics and Child Health 1504.
[3] Human Rights Law Centre, ‘Major UN Human Rights Review Highlights Need for Australia to Raise the Age of Criminal Responsibility’ (Web Page, 20 January 2021) <https://www.hrlc.org.au/news/2021/1/20/un-review-highlights-need-for-aust-to-raise-the-age-criminal-responsibility>.
[4] Haysom (n 2) 106.
[5] Day et al, ‘Co-producing Trauma Informed Youth Justice in Australia?’ (2023) 22(2) Safer Communities 106.
[6] Human Rights Law Centre, (n 3).
[7] Haysom (n 2) 107.
[8] Human Rights Legal Centre (n 3).
[9] Day et al (n 5) 108.
[10] Jared Cross, ‘Justice Reinvestment, Circle Sentencing and Koori Court Funding to Address Justice System Gaps’ National Indigenous Times (Web Page , 2 March 2023) <https://nit.com.au/02-03-2023/5135/justice-reinvestment-circle-sentencing-and-koori-court-funding-to-address-justice-system-gaps-welcomed-in-nsw>.
This article was originally published under the title ‘Neglecting the Neglected: Addressing the Australian Youth Incarceration Crisis’ in The Brief Edition 1, 2024 — Through a Glass, Darkly.