Wight, Janet --- "The youth justice system is it just?" [2019] PrecedentAULA 59; (2019) 154 Precedent 34

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THE YOUTH JUSTICE SYSTEM – IS IT JUST?

By Janet Wight

The Youth Advocacy Centre Inc (YAC) is a well-respected community legal and social welfare agency for young people who are involved in, or at risk of becoming involved in, the youth justice and/or child protection systems (10–18 years old) and/or are homeless or at risk of homelessness (15-25 years old).

These young people are among the most marginalised and excluded by our community and often the most harshly judged. Such judgement is particularly unjust given that these young people are usually victims of their environmental, family or personal circumstances, becoming ‘troubled’ and ‘troublesome’ as a result of these factors. YAC’s aim is to provide a safety net of legal and social welfare services and then seek to transition these young people into more secure lives and opportunities, both for their benefit and that of the community more broadly.

Access to justice is important both for those suffering some harm or detriment as a result of the actions and omissions of others, but also for those alleged to have inflicted that harm or detriment. This article aims to consider whether the youth justice system is indeed just for the children who become involved with it.

The following discussion should be considered in this context:

• There is no youth offending crisis: only 0.8 per cent of young people aged 10–17 in Queensland appeared in court in the 2017–18 financial year. Sixty-three per cent of offences were property-related, 6 per cent were offences involving violence, 5 per cent were drug offences and 0.5 per cent were sexual offences.^[1]

• On a ‘census day’^[2] in June 2018, of the children in the youth justice system in Queensland: 18 per cent were homeless or in unsuitable accommodation; 17 per cent had a disability; 58 per cent had a mental health or behavioural disorder; and 80 per cent were using at least one substance.^[3]

CRIMINAL RESPONSIBILITY

The current state of play

Working with adolescents can be challenging because our society continues to be conflicted about how it views its children – the view taken seems to depend on whether the child is perceived to be ‘victim’ or ‘villain’. On the one hand, children are considered ‘wholly vulnerable and incompetent’ and so ‘in need of paternalistic strategies to guide their conduct’.^[4] As a result, the law prevents under-18s from, for example, buying alcohol and tobacco, and voting. Yet, at other times, they are regarded as ‘fully calculating and sometimes sociopathic mini-adults deserving society’s harshest punishments’.^[5] Consequently, the law enables children as young as 10 to be prosecuted for breaking the law.

Recent examples show how this conflict continues to pervade law and policy-making. For instance, Queensland’s Justice Legislation (Links to Terrorist Activity) Amendment Act 2019 expressly includes children from the age of 10 years within its scope, in the same way as adults. This is despite the fact that, ordinarily, children and young people who are alleged to have broken the law are subject to a modified criminal justice system intended to recognise their immaturity.

By contrast, the protective model is manifested in the Queensland Criminal Code’s provision for offences where:

• a person causes harm to a child under 16 in their care or charge by any prescribed conduct they knew or ought reasonably to have known would be likely to cause harm to the child (s364);

• a person leaves a child under 12 in their care or charge for an unreasonable time without making reasonable provision for the supervision and care of the child (s364A).

A number of other offences consider the fact that the victim of the offence is under 12 to be a circumstance of aggravation.

This conflicted view of young people resulted in Queensland continuing to treat 17 year olds as adults for the purpose of the criminal law until 2018. Recognition of their status as minors is a positive step, but a coherent position on whether children and young people are to be protected or punished remains absent.

Why the conflict?

Key to this predicament is that, in previous eras, the protection of children was not a primary concern in Anglo-Australian society. At the time of British settlement in 1788, in keeping with accepted societal views of children, child offenders were treated no differently to their adult counterparts under the law. They went to the same courts and received the same sentences, including hard labour, and corporal and even capital punishment. Children as young as six are known to have been sent to prison. Then, a shift began to occur:

‘Children began to be seen as innocent and in need of protection. They were viewed as weak and vulnerable to inducement. Along with the notion of protection came the notion of discipline, as parents taught their children to avoid the enticements of their social world.’^[6]

This led to a reconsideration of how children were dealt with by the criminal law. In the 1880s, legislation was enacted in some Australian states to allow children charged with very serious offences to be tried summarily. In Queensland, this was for all offences other than homicide. The establishment of a separate and specialist children’s court first occurred in South Australia in 1890, and was followed in 1907 in Queensland with the following rationale:

‘We have to endeavour to distinguish between a legal function and a fatherly correction. The offences of nearly all children do not call for legal punishment but for correction administered in a fatherly manner and it is a grave mistake when we confound one of these with the other.’^[7]

Since these fundamental acknowledgements that children and adults differ, there has been significant research into child and youth development, and youth offending behaviour. Important advancements have been made in the last two decades, in particular. It is therefore widely acknowledged today, both in Australia and internationally, that young people should be subject to a system of criminal justice that is separate from the adult system and which recognises their inexperience and immaturity. This is exemplified by the United Nations’ Standard Minimum Rules for the Administration of Juvenile Justice (generally referred to as the ‘Beijing Rules’), which stress the importance of nations:

‘establishing a set of laws, rules and provisions specifically applicable to juvenile offenders and institutions and bodies entrusted with the functions of the administration of juvenile justice and designed to meet the varying needs of juvenile offenders, while protecting their basic rights’.^[8]

Despite this:

‘For decades, adolescents in trouble with the law have been portrayed as scary, predatory and less than human ... These images dominate our understanding and prevent us from seeing them as they actually are (Dorfman and Schiraldi, 2001), as we would if they were our own children or a neighbour's child. They prevent us from seeing them as young people with creativity and energy, and smarts, and possibility, in need of help to get back on track and very much worth the investment.’^[9]

Parts of the media, in particular, continue to be drivers of negativity towards children in the youth justice system with ‘law and order’ becoming a political football at key times, such as elections. This has been a longstanding problem and impedes rational and calm debate in relation to preventing youth offending and responding to youth offenders.

‘Panics about young criminals and rebellious behaviour still occur today. From young people using social media to give themselves “points” for rival stabbings, to “phone-obsessed teens” who put themselves at risk of ADHD, language has been used to create panic about young people. This moral panic is fuelled by media and mobilises popular opinion to the point that politicians change laws or policies in ways which are out of proportion to the real threat.’^[10]

As a result, our community remains divided as to whether children are deserving of sympathy or should simply be locked up with ‘the key thrown away’. A recent report on the UK from the UN Committee on the Rights of the Child found that Britain’s ‘climate of intolerance and negative public attitudes towards children, especially adolescents’ might be infringing on their rights and that the media was fuelling these attitudes.^[11]

Culpability

Culpability is a concept used generally in criminal law to determine whether a person should be held accountable and, if so, to what extent. If the criminal law is to hold people to account for the harm they have caused, there must be some recognition that there are varying degrees of culpability. The law does acknowledge this in specific situations by providing particular defences, such as diminished responsibility, which can be applied on a case-by-case basis.

With respect to children, it is argued that their culpability should be assessed in the context of their limited life experience and their mental, emotional, social and physical development. These may all be affected by a range of factors, including a child or young person’s family environment and parenting, drug and alcohol use, mental health status, and/or behavioural challenges associated with attention deficit disorder, attention deficit hyperactivity disorder and similar conditions.

However, in practice, there is no relaxation of the applicability of the criminal law: once a child turns 10, he or she can be prosecuted in Queensland. The youth justice system is, in reality, only a slight modification of the adult system, rather than a system specifically designed for children. Its applicability and processes fail to adequately take into account the vulnerability of children, as children. That vulnerability exists generally, in terms of brain development, and what might be considered normal, age-appropriate risk-taking, challenging of boundaries and lack of control. More specifically, it may relate to their individual life circumstances and experiences.

It is also noted that children are not educated about the law or their rights and responsibilities under it. While ‘ignorance of the law is no defence’, it is arguable that it cannot be just to involve children as young as 10 in the criminal law without any prior knowledge. Ignorance is not the same as a lack of understanding. Adults often struggle to understand how the justice system works, and the technicalities of offences and defences. It often comes as a surprise to parents that 10 to 13 year olds can be arrested, taken to court and held in youth detention centres.

The age of criminal responsibility and doli incapax

The question therefore arises of when should children become subject to the criminal law – in full force or appropriately modified. In 2005, the UN Committee on the Rights of the Child noted in its Concluding Observations on Australia that the age of 10 was too low. It therefore recommended that the minimum age of criminal responsibility should be increased. The Convention on the Rights of the Child requires that all actions in relation to children be in the child’s best interests (art 3): this includes children who are alleged, or have been found, to have offended. It seems difficult to reconcile the best interests of the child with their prosecution.

This is particularly so given that research shows the younger a child is when they come into contact with the criminal justice system, the greater the risk that they will remain in it and become long-term offenders. Additionally, Aboriginal and Torres Strait Islander children are at greater risk of earlier involvement. ^[12] It is strongly argued that, having finally attended to the status of 17 year olds, we now need to turn our attention to those under 14.

Perhaps one reason why the age of criminal responsibility has had less consideration until recently is that, in theory, the doctrine of doli incapax should ameliorate the impact of the criminal process on children under the age of 14. It creates a rebuttable presumption that a child aged between 10 and 14 cannot be criminally responsible. The doctrine varies around the country, as the criminal law is a state and territory responsibility. In Queensland, doli incapax was incorporated into the Criminal Code in a manner that did not simply replicate the common law:

‘29. Immature age

(1) A person under the age of 10 years is not criminally responsible for any act or omission.

(2) A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission the person had capacity to know that the person ought not to do the act or make the omission.’

The question of the criminal capacity of children under 14 has only rarely been considered by superior courts. Since 2011, all of the cases of note have derived from NSW, meaning that they deal only with the common law as to doli incapax. The recent case of RP v The Queen [2016] HCA 53 was very instructive in relation to the common law approach. However, it did not shed any light on the Queensland Code provision, and it remains the case that s29 provides little protection to 10-13 year olds who are considered to have broken the criminal law. Analysis of the position suggests that:

‘The Queensland Court of Appeal has consistently expressed a test that requires proof of a general capacity to understand that the specific act charged ought not to have been done (mutatis mutandis with respect to omissions). That test is clear from the wording of s29(2) and differs from the common law. It does not require proof of any specific degree of wrongfulness. This may be a matter of some concern, permitting a lower bar to be set for children in the Code jurisdictions: all that needs to be established, it seems, is that they have the capacity to distinguish right from wrong simpliciter in order to bear criminal responsibility.’^[13]

Taking all this into account, the age of criminal responsibility should be raised to 14 (at least) in Queensland – and preferably in all Australian jurisdictions since this is the minimum now recommended by the UN Committee on the Rights of the Child. This would bring Australia into alignment with many other countries around the world.^[14] It is arguable that children committing serious offences under this age or who are offending regularly are themselves at risk of serious harm as a result of this behaviour, as well as whatever is precipitating it. A more just response for children, recognising their vulnerability, would be to engage the child and their family as early as possible in seeking to address the reasons for offending and to identify positive and realistic solutions. This would enable the family and the young person to address problems in a more therapeutic manner – a ‘best interests’ approach, which would ultimately prevent further offending for the benefit of the whole community.

Criminalisation of children

The age at which criminal responsibility should be set has been a long-standing question. Another cause for concern – that the criminal justice system is not working justly for children and young people – is that simply being a child can increase the risk of involvement in that system.

Sections 228B(1), 228C(1) and 228D(1) of the Queensland Criminal Code create offences for the production, distribution and possession of child exploitation material; that is, certain images of a child under 18 years of age. It is clear that the intent of the provisions was to protect children from predatory adults, not criminalise children. However, this provision has been used to prosecute children for sending a picture of themselves (so that they are their own victim) to a boyfriend or similar. Not only that, but child recipients are also prosecuted for having such pictures on their phones, even if those pictures were unsolicited. On one occasion, a youth worker informed police that a client had sent such an image, which led to the child being charged. (To be clear, these were not situations of misuse of material by others or images being shared without consent.)

Whether potentially inappropriate or unwise, adults send such images of themselves to each other and, provided it is done consensually, are not breaking any laws in so doing. Children simply copying this behaviour cannot possibly realise that, because they are under 18, their behaviour constitutes an offence. The impact is serious because even a charge of possession will be sufficient to trigger a negative flag for a blue card (Working with Children Check) in years to come.

This application of the Code disproportionately and unfairly affects young people, who are the first generation with almost universal access to handheld devices (phones) capable of accessing the web, taking and virally sharing images and video instantaneously. These are young people who may have had little or no education or supervision around the use of the technology. Indeed, it is increasingly parents who look to their children to advise them about how to use devices and navigate social media.

YAC has not seen any prosecutions of children in respect of these sections of the Code in recent times, but advocated individually and systemically for a period of time. The provisions remain applicable to children and there is concern that they could still be used in this way.

Similarly, consensual sexual activity in what would be considered to be age-appropriate adolescent sexual exploration and behaviour is also subject to prosecution in Queensland where one or both parties are under 16.

It is noted that other states address these situations by preventing prosecution of consensual activity where those involved are within two years in age. To date, however, Queensland has not taken this common sense approach, leaving children at risk of prosecution until these laws are amended.

Criminalisation and the child protection system

During the 2012 Queensland Child Protection Commission of Inquiry,^[15] a senior departmental executive noted that 69 per cent of children in the youth justice system were known to Child Safety Services, which is a concern in itself. What is of even greater concern is that criminalisation can stem from within the care system.

For many years there has been ongoing concern relating to some youth services, particularly in out-of-home care settings, where the police are called to intervene. This is particularly problematic in circumstances where, if a child was living at home, the parents would manage the relevant behaviour. While some situations can be more serious, those that YAC has seen are often quite low level: smashing crockery, or breaking into a place where the child’s property is being held. Instead of de-escalating the situation and managing the behaviour as part of a disciplinary strategy, the police are called. YAC knows of children whose entire police history (of some length) comprises such incidents.

Children who are in care and living in out-of-home care can be expected to have behavioural issues and to struggle to communicate appropriately. Justice is not served by involving such children in the criminal justice process. More appropriate responses should be in place to address the behaviours and to support children to develop the necessary self-regulatory skills. Recognition of this unnecessary criminalisation of children in residential care has, after many years, finally resulted in a joint agency protocol to reduce police call outs to residential services.^[16] It remains to be seen whether this long-standing issue is adequately addressed through this mechanism.

Double punishment

Amendments in 2013 to the Education (General Provisions) Act 2006 (Qld) enable state school principals to suspend a student charged with an offence and exclude a student found guilty of an offence, irrespective of whether that offence related in any way to the school, aside from the (alleged) offender being a student there.

Where a young person has been charged with an offence, they are entitled to be considered innocent until proven guilty. Where they have been found guilty of an offence, excluding them from school is effectively punishing them twice for the same matter, which is unjust. Young people have a right to an education and undermining their ability to attend school and to receive an education should not be used as a response to (alleged) offending behaviour.

The research and evidence show that remaining engaged with education is a significant factor in young people’s lives and dropping out of school (and so also being excluded from school) increases their risk of offending behaviour and other social problems. Schools should be better resourced and equipped to assist, rather than to ostracise, children facing these issues.

In YAC’s experience, it is also becoming increasingly common for children who have a criminal history and who are not Australian citizens to be deported once they turn 18. Citizenship status is generally not something that children would give any thought to. It is also highly unlikely that any child would appreciate that being in trouble with the law would mean that they could be banished from Australia, and permanently separated from their family and community. For example, a YAC client was found guilty of a relatively serious offence, but the Judge did not record a conviction, meaning that the offence would not be generally disclosable if the child remained in Australia as an adult. The client has not re-offended in the ensuing five years. However, on turning 18 the client now faces deportation to a country on the other side of the world, having spent almost their entire childhood in Australia, and the prospect of leaving behind all of their immediate family. Again, this is effectively a double punishment, which is particularly unjust in the case of children. This would seem to fly in the face of the rationale for having a modified justice system for children with the aims of rehabilitation and reintegration.

CONCLUSION

It is of significant concern that we continue to criminalise some of our most vulnerable and disadvantaged children.

Our community’s leaders must take a more objective and open approach to considering how best to address children’s behaviour currently characterised as breaches of the criminal law in ways that are more productive for the child and the community. In this regard, the age of criminal responsibility should be raised and 10–13 year olds should not be involved in the system at all. Certainly it should not be possible to prosecute children for behaviour for which an adult would not be prosecuted. Where they are prosecuted, any sentence imposed by a court is the consequence for the offending: further penalty (such as exclusion from school or deportation) is not appropriate.

It is YAC’s contention that, at present, the criminal law and its systems are not sufficiently cognisant of the needs and best interests of children and, as such, justice is not being served.

Janet Wight is the CEO of the Youth Advocacy Centre, a community legal and social welfare agency in Brisbane providing a multidisciplinary response to children aged 10–18 years involved in, or at risk of involvement in, the youth justice and/or child protection systems; and/or who are homeless or at risk of homelessness. PHONE [phone] EMAIL [e-mail].

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^[1] Complexity of young offenders, Youth Justice Census (June 2018), <https://www.youthjustice.qld.gov.au/resources/youthjustice/resources/youth-justice-pocket-stats.pdf>.

^[2] Ibid.

^[3] Department of Child Safety (Qld), Youth and Women, Youth justice pocket stats 2017–18, <https://www.csyw.qld.gov.au/resources/dcsyw/youth-justice/youth-justice-pocket-stats.pdf>.

^[4] K Taylor-Thompson, ‘States of mind/States of development’, Stanford Law and Policy Review, Vol.14, 2003, 143 at 146.

^[5] Ibid.

^[6] M Ilias and R Akter, ‘Social history of childhood and children: A note on the cultural and historical differences in child care’, IOSR Journal of Humanities and Social Science (IOSR-JHSS), Vol. 22, No. 7, Ver. 4, July 2017, 54–9.

^[7] A Queensland Member of Parliament when the Children’s Bill was debated on the introduction of the court.

^[8] Clause 2.3.

^[9] P McCarthy, V Schiraldi and M Shark, ‘The future of youth justice: A community-based alternative to the youth prison model’, New Thinking in Community, No. 2, October 2016.

^[10] C Kelly (PhD student in Socio-Legal Studies, University of Oxford), ‘Three ways teenagers are misrepresented in society’, The Conversation, 29 August 2018, <https://theconversation.com/three-ways-teenagers-are-misrepresented-in-society-101557>.

^[11] E Dugan, ‘Teenage job hopes ruined by negative media stereotypes’, The Independent, 19 February 2014, <https://www.independent.co.uk/news/business/news/teenage-job-hopes-ruined-by-negative-media-stereotypes-9137147.html>.

^[12] See, for example, AIHW Youth Justice in Australia Report 2017-18, iv.

^[13] A McKeon, Internal research paper for YAC (2018).

^[14] Including Albania, Angola, Armenia, Austria, Azerbaijan, Bolivia, China, Croatia, Estonia, Germany, Italy, Japan, Paraguay, Romania, Russia, Slovenia, South Korea, Spain, Taiwan, Ukraine, Vietnam.

^[15] Often referred to as the ‘Carmody Inquiry’.

^[16] Queensland Family and Child Commission, Joint agency protocol to reduce preventable police call-outs to residential care services (August 2018), <https://www.qfcc.qld.gov.au/sites/default/files/Joint%20agency%20protocol%20to%20reduce%20preventable%20police%20call-outs%20to%20residential%20care%20services.pdf>.