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How young is too young to be a criminal?

The Australian youth justice system is often hard on people under the age of 18 who’ve committed crimes, but slowly a shift is occurring. In March 2017, four teenagers received a total of $53,000 in damages after they filed an action against the Government in response to an incident at Darwin’s Don Dale Youth Detention Centre in 2014. All four were tear-gassed while detainee Jack Roper was subdued. It was a timely outcome, as a Royal Commission into the Protection and Detention in the Northern Territory is simultaneously taking place.

What’s the state of Australia’s youth detention system?

The minimum age of criminal responsibility in Australia is 10, and for those aged between 10 and 13, it must be proved that they knew what they were doing. In many cases, a court will find that they might not have known the difference between right and wrong and cannot be found guilty. Therefore juveniles are broadly considered to be aged between 14 and 17. In all states, people aged 18 and over can be charged as adults, except Queensland where 17-year-olds can be charged as adults.

According to Dr Wendy O’Brien, Senior Lecturer in Criminology at Deakin University, children in criminal justice detention are among the most vulnerable children in our community. ‘This cohort of children has high rates of cognitive disability, childhood trauma and victimization, and a very high proportion of children in criminal justice detention have been in the care and protection of the state,’ Dr O’Brien says.

She argues that they require increased understanding, patience and sensitivity and that this response is the only one aligned with international legal obligations pursuant to the Convention on the Rights of the Child (which Australia is a party to). However, according to Dr O’Brien, the youth detention system in its current state is failing these obligations in many cases.

Can children be rehabilitated?

In addition to her suggestion that detention is an inappropriate approach from a social perspective, Dr O’Brien points out that children’s brains are not developed until their early-to-mid-twenties. ‘This means that children are, by virtue of their physiology, wired in such a way that they will act before thinking,’ she says, explaining that detention is harmful mentally, too.

When handled correctly, rehabilitation can be very beneficial, because a young person’s brain isn’t ‘hard wired’ until the age of 25. ‘This means that diversionary efforts that provide a child with the supports that they need, and appropriate behavioural change strategies do have strong prospects for success – but these prospects are significantly diminished if we incarcerate children,’ Dr O’Brien argues.

What’s the alternative to detention?

Although it might appear counterproductive to bypass detention in favour of gentler alternatives, Dr O’Brien suggests that community-based support enables youths and their families to avoid the stigma and increased trauma that comes with being detained. While the outcomes of the Royal Commission into the Protection and Detention in the Northern Territory are yet to be seen, Dr O’Brien is adamant: ‘If we destroy a child’s hope for a meaningful future then we destroy their prospects for rehabilitation. This is fundamentally at odds with efforts to ensure community safety,’ Dr O’Brien says.

'If we destroy a child’s hope for a meaningful future then we destroy their prospects for rehabilitation. This is fundamentally at odds with efforts to ensure community safety'

Dr Wendy O'Brien,
School of Humanities and Social Sciences, Deakin University

She suggests two alternatives. First, justice reinvestment is an option that involves diverting funds from corrections into areas that strengthen communities. According to O’Brien, programs in NSW such as Justice Reinvestment in Bourke have delivered positive results. ‘The deplorable over-criminalisation of Indigenous children means that we must ensure that Indigenous-led alternatives to detention are prioritised, and provided with the funding required over the longer term,’ she says.

Secondly, Dr O’Brien recommends restorative justice, which involves problem-solving measures that are employed to promote understanding, rehabilitation, community cohesion and enhanced community safety. ‘It is infinitely preferable to ensure the operation of justice responses that focus on community cohesion and the wellbeing of individuals (including the victim and their family),’ Dr O’Brien says. She believes this approach is more consistent with child rights and international standards on criminal justice. ‘It is a mistake to impose lifelong consequences on a child for behaviours that are fleeting,’ Dr O’Brien concludes.


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Dr Wendy O'brien
Dr Wendy O'brien

Senior Lecturer in Criminology, Deakin University
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