Hey guys!

I hope you’re surviving the exam period. We are now finishing up for the semester, so this will be my last newsletter until semester two commences in late July.

I n light of a recent High Court decision, this week we will be looking at the issue of youth justice. I will give you an overview of the High Court decision, we will then examine the ongoing issues with the youth justice system and finally we will explore a new approach.

The High Court decision explained

The majority of the High Court ruled that the use of tear gas by prison officers at the Don Dale Youth Detention Centre was unlawful. The appeal arose from a civil claim for damages against the NT government claiming the use of tear gas amounted to battery, with a lower-court finding that adult prison officers were authorised to use the gas.

The claim was brought by four detainees following the Four Corners episode ‘Australia’s Shame’ in 2016, showing footage of tear gas being deployed in response to a detainee at the Detention Centre escaping from his cell. The appellants at the time of the incident were aged between 15 and 17 and the footage lead to the Royal Commission into the Protection and Detention of Children in the Northern Territory in 2016.

In the judgment, a majority the High Court bench made statements that a detainee in a youth detention centre under the Youth Justice Act, is not a prisoner and that a youth detention centre is not a prison. Chief Justice Susan Kiefel and Justice Patrick Keane said in a joint judgment "It is no part of a prison officer's function to use a weapon in a youth detention centre."

The High Court allowed the appeal, ruling the appellants are entitled to damages in respect of their claims for battery arising out of the unlawful use of tear gas against them. The matter was sent back to the Northern Territory Supreme Court to determine damages.

Issues with the Youth Justice System

The Royal Commission into the Protection and Detention of Children in the Northern Territory published it’s final report in November 2017 making 227 recommendations based on the 147 findings. One of those recommendations included the prohibition of the use of tear gas in youth detention centres. Since the Royal Commission, the Northern Territory continues to have ongoing issues with its youth justice system including riots, use of force with failures by the NT government to implement the recommendations.

In 2019 across Australia, over half of all young people in detention are Aboriginal or Torres Straight Islander, young Indigenous Australians are 21 times more likely to be in detention.

Here in Victoria we experienced similar failings in the youth justice system that culminated in a series of riots and incidents at the Parkville and Malmsbury Youth Justice Centre in 2016 and the beginning of 2017, leading to the Parliamentary Inquiry into Youth Justice Centres in Victoria. The final report published in March 2018 found that there has been “a clear attitudinal change recently in some parts of the Victorian community, including the Victorian parliament, away from rehabilitation and towards punitive responses.”

The report found also that of the children and young people sentenced or on remand in 2015–16 in Victoria, 63% were victims of abuse, trauma or neglect and despite having the most expensive system per young person in Australia, young people’s lives were not improving once they were released from detention.

A holistic approach to youth offending: rehabilitation, not punishment

So what are we doing wrong? The system is failing by taking a punitive approach to youth justice. That is, tough on crime policies as a means of punishment and control of already vulnerable young people. By failing to look at or address the circumstances that lead to a young person offending, we see high rates of recidivism. In 2016 the Sentencing Advisory Council in Victoria found that 80 per cent of children who were first sentenced aged 10 to 13 went on to reoffend, and 60 per cent went on to commit offences against the person.

What is needed is a youth justice system that invests in the support and rehabilitation of young offenders and taking a holistic approach that includes support services extending to the young person’s family and carer community.

In addition, there is also a strong call to increase the age of criminality from 10 to 14 years old. I have included the CIJ’s submission to the Council of Attorneys-General’s Age of Criminal Responsibility Working Group Review that advocates a strong position for the reform. It is certainly worth checking it out!

Thanks for tuning into my newsletters this semester. I hope you get through your final exams. If you have any feedback or would like me to cover any particular issues, feel free to get in touch with me at cij@rmit.edu.au.

Until next time!

CIJ SUBMISSION: Read the CIJ’s submission recommending the age of criminal responsibility should be raised to at least 14 years in all Australian jurisdictions and to focus on a holistic approach when responding to young peoples’ offending using restorative justice, justice reinvestment and evidence-based therapeutic programs to change their behaviour. Read it here.

LISTEN (PART 1): No handcuffs, no uniform: a different approach to youth justice. The Law Report takes a tour of Korowai Manaaki Youth Residence in Auckland and asks what can we learn from NZ and what can they learn from us? In this episode you hear from troubled young offenders and the people who care for them. Listen to it here.

WATCH: The documentary film In My Blood It Runs follows 10 year-old Dujuan Hoosan, Arrernte and Garrwa boy from Alice Springs, and examines the problems faced by Indigenous children with the stark contrast between his behaviour at school and on his ancestral homeland. It shows how an Dujuan, when surrounded by family is where he is focused, engaged and learning, yet at school he runs the risk of ‘failing’ and faces increasing scrutiny from welfare and the police. It premiers on ABC and ABC iview at 9.30pm on Sunday, July 5 or y ou can rent it online to stream here.

LISTEN (Part 2): Youth justice, Maori style. Find out what it's like to sit on a Rangatahi, one of the Maori Youth Courts of New Zealand and hear how they compare to Indigenous courts in Australia. Listen to it here.

Webinar series: How did you get here?

This is a weekly webinar series presented by the Centre of Innovative Justice to give RMIT law students a better understanding of the scope and variety of career pathways a law degree can offer. It is an interactive session where a range of young legal professions who have graduated within the last 10 years are invited to share their career journey. You are encouraged to participate in the session and have your questions answered.

We will be resuming the webinar series in semester 2.