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Juvenile Justice? Ensuring the Opportunity to Thrive

Children's Children's Rights

Megan Mitchell

National Children’s Commissioner

Australian Human Rights Commission

 

5th Annual National Juvenile Justice Summit
Rydges, Melbourne
Tuesday 25 March 2014

 

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Acknowledgements

Thank you, Julie, for the kind introduction.

I would like to acknowledge the Traditional Owners of the land on which we meet, pay my respects to elders, past and present, and to acknowledge other Aboriginal people here today.

I would also like to acknowledge my fellow Children’s Commissioners, Bernie Geary, the Principal Commissioner for Children and Young People in Victoria, and Andrew Jackomos, Victoria’s Commissioner for Aboriginal Children and Young People, as well as other esteemed guests.

Introduction

I thought I might begin today by sharing with you the words of a few of the young people I heard from during my national listening tour last year.

When asked what would make life better for children and young people in Australia, responses from young people included:

“No prison for kids” – 16 year old male

“(If) the parole board monitored youth progression in custody for long term clients, for early release and leave programs.” – 18 year old male

“I would like better carers... so I can feel safe, better stuff to live with... carers that are more capable of dealing with people in my circumstances.” – 15 year old male

When voicing their concerns about the juvenile justice system in Australia, two more responses from young people in direct contact with the justice system were:

“Laws are getting too harsh and us young offenders are getting long sentences.” – 15 year old male

and

“Juvenile justice doesn’t help kids – it makes them worse.” – 16 year old

From these examples alone, it is clear that young people within the juvenile justice system recognise the need for a shift in the way we deal with young offenders.

I am excited to be here today at the 5th Annual National Juvenile Justice Summit, and in particular to explore ways to ensure that our young people’s voices are heard, and that we are giving them every opportunity to be proactive participants in the decisions that affect them today, and into the future, rather than passive recipients of justice and care services.

My role as the National Children’s Commissioner

As you know, promoting respect for the human rights of children in Australia, and working in their best interests, is central to my role as National Children’s Commissioner. These rights are articulated in the Convention on the Rights of the Child which Australia signed up to 23 years ago. In doing so, Australia promised to uphold and protect children’s rights in Australia.

Article 12 of the Convention on the Rights of the Child gives to every child the right to have a say, the right to have their views taken into account, and the right for those views to be treated seriously. Without this right, which is one of the four guiding principles of the convention, all other rights cannot be properly exercised.

And having taken up this position a year ago today, my initial focus was naturally to seek out the voices of children in Australia.

To do this, I conducted a national listening tour, which I called the Big Banter.

Through the Banter, I met face-to-face with well over 1,000 children, and I heard from a further 1,400 children through an online survey and through the post. I’ve also spoken with hundreds of children’s advocates across the country.

On the Banter I spoke with a diverse group of young people across the country, including children in detention settings. Here is what kind of a world some young people in Reiby Juvenile Justice Centre said they wanted. As you can see, they wanted a community where there were: parks, places to play football, and they wanted respect and guidance.

The opportunity to thrive – A key theme emerging from the Big Banter

After the Big Banter concluded in September of last year, I identified a number of key themes to emerge from my consultations and which I outlined in my first report to Parliament tabled in December 2013.

‘The opportunity for all children to thrive’ formed one of these key themes.

For me, this means the need to safeguard the health and well-being of all children in Australia. Of course, while it is impossible to guarantee material equality for all children, it is within our power to ensure that each child has an equal opportunity to thrive.

And as you will be well aware not all children in Australia have equal opportunities. Many children live in families with multiple disadvantages, where there are a combination of risk factors such as housing instability, low educational attainment, domestic violence, substance abuse and mental health problems.

2013 research by Richards and Renshaw on Bail and Remand for young people in Australia shows just how vulnerable these children are to contact with the justice system and subsequent incarceration. [1]

This vulnerability has significant implications and as we also know children with these kinds of vulnerabilities are more likely than average to enter both the juvenile justice and the out-of-home care systems [2]

In fact a study by Legal Aid NSW analysing the 50 highest users of legal aid services, shows that 80% were under 19. Three quarters had used drugs or alcohol, nearly half had a mental health diagnosis, 72% had experienced abuse or neglect. More than half had been homeless, just under half had been in care and 94% had spent time in a juvenile detention facility. And, as many as 82% had been excluded, suspended or expelled from school.[3] These are stark figures that remind us how badly multiple systems - of health, housing, justice, education and care - are failing these young people.

Collaborative Approaches to Juvenile Justice

As this slide shows, we know that there are clear links between childhood mistreatment, entrance into the out-of-home care system, and offending during adolescence.[4]

Of the now 40,000 plus young people in state care, these children are fifteen times more likely than the general population to enter the juvenile justice system.

In line with the findings of the NSW Legal Aid study, Cashmore’s 2011 work shows that nationally, 81% of young women and 57% of young men in juvenile justice detention have experienced abuse or neglect. [5]

It seems logical that the high degree of overlap between the out-of-home care system and the juvenile justice system suggests the need for cooperation between the two. Both systems no doubt want to achieve the best outcomes for at-risk children.

However, as Cashmore has pointed out, this is often more challenging than it looks. Young people with complex needs who move between out-of-home care and juvenile justice frequently fall through gaps and receive disconnected and poorly integrated support.[6]

Using detention as a welfare solution is another example of service system failure, for instance where young people cannot demonstrate they have access to stable accommodation, or can’t return to their home and so are denied bail and remanded in custody. [7]

The Convention on the Rights of the Child is clear on this point. Incarceration of young people is to be used as a last resort and should be used for the shortest possible time. [8] Further, Article 40 of the Convention supports the availability of alternatives to institutional care, such as guidance and supervision orders and education and vocational training programs. In this way the Convention recognises, like one of the young people I quoted before, that detention is likely to do more harm than good for the developing child, and often only serves to entrench criminal identities and associations.

Another common example of systems neglect is in cases where the state has parental responsibility for a juvenile offender. Again Cashmore’s 2011 report sites research by McFarlane on children who had files with both the NSW Child Protection agency and the Juvenile Justice Department. This study revealed that even where the state was ostensibly the parent, the responsible child protection officer attended the court hearing for the juvenile offender in only one case out of 62.[9] This shows the critical importance of coordinating and connecting program and case management across juvenile justice and child protection systems.

We often look to our Scandinavian and US friends for innovative models and this area is no exception. What characterises these systems is an emphasis on social services with incarceration of juvenile offenders as a last resort and court or tribunal models, and characterised by holistic case management. The US style collaborative court model expands the role of judges in cases which involve both juvenile delinquency, and abuse and neglect. In this model, juvenile offenders do not avoid accountability, but courts aim to provide support and social services, rather than purely punitive measures. [10]

Prevention and early intervention

There is undoubtedly a clear need for increased collaboration in cases where vulnerable young people move between the out-of-home care and juvenile justice systems.

On the other hand, it is my firm belief that our efforts should also be focused on avoiding that initial contact, or at least deep contact, in the first place.

The importance of early intervention and diversion has also been recognised by the UN Committee on the Rights of the Child in its General Comment 10, which states that any effective juvenile justice system must include strong preventative measures. [11]

The effectiveness of preventative measures

Evidence has shown that policies and preventative interventions which help to address vulnerability in children will ultimately reduce rates of juvenile offending.[12]
Involvement with the juvenile justice system not only increases the likelihood of further juvenile offending, but it increases the probability that a young person will continue to commit more serious crimes into adulthood.[13] This comes at a high cost to the individual, the community and the state.

Recent research commissioned by the Benevolent Society which resulted in the report Acting Early, Changing Lives shows that at-risk children who participate in early intervention programs are more likely to finish school, and less likely to enter the juvenile justice system.[14] Conversely, a 2013 Australian Institute of Health and Welfare report shows that young people who have been incarcerated experience long-term negative impacts, including marginalisation from their community, poor health outcomes and fewer employment opportunities.[15]

Early intervention and prevention in the context of juvenile justice can take a number of forms, but it is possible to identify those characteristics which are shared by successful policies. Most importantly, successful policies are those that give adequate consideration to the complex needs of juvenile offenders and their family contexts.[16]

There has of course been some recognition of the need for these types of policies in the Australian context, and we can point to some exciting successes at individual community and grassroots levels.

One of these is ‘Clean Slate Without Prejudice’, a collaboration between the Redfern Local Area Police Command and Tribal Warriors operating in the Redfern community. The program builds positive relationships between at risk post release Aboriginal young people, local Aboriginal mentors and Redfern police officers. It offers a program of boxercise and fitness, education, personal development, training and job opportunities. Superintendent Freudenstein has reported that, following the introduction of the program, robberies in the area have fallen from an average of 100 per month in 2005 to an average of 12 per month in 2012.

But despite these inspiring local initiatives, what we lack is a consistent, cohesive, national approach. This was a strong theme emerging from my conversations with children’s advocates during the Big Banter. These advocates clearly identified the need for comprehensive and coordinated national investment in early intervention and prevention targeted at both children and families.

As work by the Benevolent Society shows, the majority of everyday Australians believe that children’s issues should be addressed early, in order to prevent the need for costly intervention later in life[17] . And I believe it is only through this kind of action where we have the opportunity to end the growing cycle of disadvantage across and down through the generations.

And this makes economic sense too.

I would like to briefly highlight a telling case study, which reinforces just how important and cost effective early intervention could be. Casey’s study was presented as part of the Human Rights Commission’s access to justice for people with disabilities project last year. It focused on an Indigenous woman now in her early 20s with an intellectual disability and a history of abuse and trauma, as well as a high level of contact with state institutions, including the police force and the juvenile justice system. By the age of 20, her institutional costs were estimated at $5,515,293, including roughly $478,000 in juvenile justice. The study projected that if Casey had been provided with an intensive early intervention package beginning from age 7, and an increased level of support, including accommodation, from the age of 18, she would not have offended and would not have been involved with the criminal justice system, with projected savings of up to $2.9 million by the age of 20.[18]

Justice reinvestment

Another approach receiving recognition is justice reinvestment.
The core aim of justice reinvestment is to redirect resources from traditional correctional and related tertiary systems and reinvest them into programs which emphasis early intervention and prevention.

Custodial sentences for juvenile offenders have been shown to have little or no specific deterrent effect. Numerous studies have shown that juveniles who have been given custodial sentences are more likely to reoffend than juveniles who are kept in community based settings or given alternative orders.[19]

Juvenile detention is not only ineffective, but also hugely expensive – it costs at least $600 per day to detain a young person.[20]

Justice reinvestment takes this on board, and funnels money that would have been spent on juvenile detention and law and order into programs and supports which have been proven to be more effective at preventing juvenile crime.

Justice reinvestment programs are also data-driven and evidence-based, so that they target communities with a disproportionately high number of at-risk young people or juvenile offenders. They recognise that a multitude of risk factors can make a young person more likely to offend, so they are tailored to meet the needs of each particular community.

Justice reinvestment in the United States

The concept was first developed in the United States. Since 2006 it has been implemented in 17 states, with some great successes. For example, in Texas, where money that would otherwise have been invested in prisons was spent on substance abuse services and early intervention in the health of infants, the growth in imprisonment was halted for the first time in years, to the extent that Texas is now closing prisons. In fact, it is estimated that in that State approximately $2 billion over a five year period was saved as a result of justice reinvestment.

Successful justice reinvestment programs in Australia
There are several successful initiatives already operating around Australia that embrace this kind of concept.

One example is the Youth Support Service program operating in Melbourne and the Latrobe Valley, which targets young people aged 10-17 years who are at risk of offending or are in the early stages of their involvement with the juvenile justice system. The program seeks to resolve the underlying causes of the young person’s behaviour, such as family conflict or substance abuse. Each individual support plan also includes family support, through family problem-solving meeting and family mediation and referral.

Zoe, a 16 year old young woman, is an example of the success of the program. She was referred to YSS by the police because she had been involved in several fights. She had stopped paying attention in school and she was living in temporary accommodation with her mother, who was attempting to extricate herself from an abusive relationship. After completion of the six month program, Zoe did not reoffend; she had entered treatment for her anxiety problems, was living in stable accommodation and had reapplied herself in her studies.[21]

Last year, I joined Commissioner Gooda (Aboriginal and Torres Strait Islander Social Justice Commissioner at the Australian Human Rights Commission) as a Justice Reinvestment Champion for the NSW Justice Reinvestment Campaign for Aboriginal Young People, and in May and December of last year, we visited the community of Bourke in NSW to talk about opportunities for justice reinvestment in that community.
Although one of Bourke’s strengths is the established local governance structure, what we’ve been hearing is that the community is not getting enough of a say into how money is spent and the way programs are run. Justice reinvestment has the potential to bring communities into these conversations and decisions.

Conclusion

To achieve local solutions to local problems, we need to hear from and directly engage with the community as a whole, but we also need to hear from our young people.

Hearing the voices of our most vulnerable children is critical to ensuring that all Australian children have the opportunity to - not just survive - but to thrive.

In this vein, I would like to end by relaying the wise words of a 15 year old who wrote to me last year. He said “I... want more help on the outside, than being locked up straight away.”

I believe we owe it to this young man to take his views seriously and work together to build a strong national focus on intervention, prevention and diversion, and in doing so move us further down the road to fulfilling our obligations to protect and promote the rights of all Australian children.

Thank you.


[1] Kelly Richards and Lauren Renshaw, ‘Bail and remand for young people in Australia: A national research project’ (2013) 125 AIC Reports: Research and Public Policy Series 174.

[2] Paul Wagland and Bianca Blanch, ‘Youth in custody in NSW: aspirations and strategies for the future’ (2013) 173 NSW Bureau of Crime Statistics and Research Crime and Justice Bulletin 1, 1.
[3] Pia van de Zandt and Tristan Webb, Profiling the 50 highest users of legal aid services

(NSW Legal Aid, 2013).

[4] Australian Institute of Health and Welfare, Australia’s Welfare 2013 (Australian Institute of Health and Welfare, 2013) 184; Philip Mendes, Pamela Snow and Susan Baidawi, Young people transitioning from out of home care in Victoria: strengthening support services for dual clients of child protection and youth justice – Phase 2 Report (Monash University, 2013) 12.

[5] Judy Cashmore, (2011) ‘The link between child maltreatment and adolescent offending: Systems neglect of adolescents’ 89 Family Matters 31, 32.

[6] Judy Cashmore, (2011) ‘The link between child maltreatment and adolescent offending: Systems neglect of adolescents’ 89 Family Matters 31, 36.

[7] Australian Institute of Health & Welfare, Children and young people at risk of social exclusion: links between homelessness, child protection and juvenile justice (AIHW, 2012) 1.

[8] Convention on the Rights of the Child, 1989, art 37, available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx.
[9] Judy Cashmore, (2011) ‘The link between child maltreatment and adolescent offending: Systems neglect of adolescents’ 89 Family Matters 31, 37.

[10] Judy Cashmore, (2011) ‘The link between child maltreatment and adolescent offending: Systems neglect of adolescents’ 89 Family Matters 31, 38.

[11] UN Committee on the Rights of the Child, General Comment No 10 (2007): Children's Rights in Juvenile Justice, 25 April 2007, CRC/C/GC/10, available at: http://www.refworld.org/docid/4670fca12.html.

[12] Kelly Richards and Lauren Renshaw, ‘Bail and remand for young people in Australia: A national research project’ (2013) 125 AIC Reports: Research and Public Policy Series 102.

[13] Kelly Richards and Lauren Renshaw, ‘Bail and remand for young people in Australia: A national research project’ (2013) 125 AIC Reports: Research and Public Policy Series 102.

[14] Tim Moore and Myfanwy McDonald. Acting early, changing lives: how prevention and early action saves money and improves wellbeing (The Benevolent Society, 2013).
[15] Australian Institute of Health and Welfare, ‘Diverting Indigenous offenders from the criminal justice system’ (2013) 24 Closing the Gap Clearinghouse Resource Sheet 1, 1.

[16] Kelly Richards and Lauren Renshaw, ‘Bail and remand for young people in Australia: A national research project’ (2013) 125 AIC Reports: Research and Public Policy Series 104.

[17] Woolcott Research, Support for Investment in Early Action (2013), available at www.benevolent.org.au/~/media/Benevolent/News/Reports/20130429_Early_Ac….

[18] Ruth McCausland et al, ‘People with mental health disorders and cognitive impairment in the criminal justice system: cost-benefit analysis of early support and diversion’ (based on paper presented at the Australian Human Rights Commission and University of New South Wales roundtable Access to Justice in the Criminal Justice System for People with Disability, held at University of New South Wales, 22 April 2013).

[19] Don Weatherburn, Sumitra Vignaendra and Andrew McGrath, The specific deterrent effect of custodial sentences (NSW Bureau of Crime Statistics & Research, 2009) 1.

[20] NSW Department of Attorney General and Justice, NSW Auditor-General's Report 2011 (vol 7) (NSW Auditor-General, 2011) 32, available at http://www.audit.nsw.gov.au/ArticleDocuments/227/Volume_Seven_2011_03_Department_Attorney_General_and_Justice.pdf

[21] Jacqueline McKenzie, Insights from the coalface: the value of justice reinvestment for young Australians (Australian Youth Affairs Coalitin, 2013) 37-39.

Megan Mitchell, Children's Commissioner