Inquiry reveals that youth justice systems are becoming more harsh and unkind

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If vulnerable First Nations children with complex trauma continue to be punished in ever harsher ways, they are much more likely to continue along a criminal path, a senate inquiry has heard.

On Monday, Arrernte Luritja woman Catherine Liddle, chief executive of SNAICC – National Voice for our Children, told the Senate Inquiry into Australia’s Youth Justice and Incarceration System that Indigenous children are removed from their families, communities and cultures and placed into child protection systems at appallingly disproportionately high rates.

“A huge number of our children in child justice systems have had traumatic experiences or are crossover children – these are the children in the youth justice system who have also been in child protection systems,” she said.

In 2022-23, two-thirds of children in child justice systems had been in child protection systems in the previous 10 years, with First Nations kids 26 times more likely than non-Indigenous children to be among these crossover kids.

“They are the most vulnerable children,” Ms Liddle said.

“When children are separated from their families, communities and culture the risk of adverse outcomes for their health, development and wellbeing increases.

“However, instead of meeting them with trauma informed supports and therapeutic care, our systems are reacting increasingly in more and more punitive and often cruel ways.

“I often think to myself whether or not we’d bring in these things if it was us that had to sit in a chair with restraints with a spit hood over our head for any length of time.”

Children’s advocates from across Australia have accused the states and territories of failing to protect the rights of vulnerable children and are urging the Federal Government to intervene.

Wirdi barrister Tony McAvoy SC chairs the Law Council of Australia’s Indigenous Legal Issues Committee and was senior counsel assisting the Royal Commission into the Protection and Detention of Children in the Northern Territory.

Mr McAvoy told the senate inquiry that the Commonwealth is now in a position where states and territories appear to be Australia’s international human rights obligations.

“It seems to me that, unless there is some Commonwealth action, that will continue to be the case,” he said.

“So it’s not a question of whether the Commonwealth should act; it’s what it should do.”

Mr McAvoy pointed out that the Federal Government has a range of legislative, policy and funding options if it is serious about improving youth justice.

“It can’t be simply putting a different band-aid at the tail end of it, after the wounds have been created,” he said.

“Everybody here, everybody who has appeared before this inquiry, has given evidence and made submissions and been through this many times and said the same thing: we know that it has to be community based, that it has to be family oriented.

“Unless there is some Commonwealth intervention, nothing’s going to change.”

All of Australia’s children’s commissioners, guardians, and advocates spoke at the senate inquiry, including Queensland Family and Children’s Commissioner Natalie Lewis, a Gamilaraay woman.

“There will be lots of content circulating about the important submissions made today but I want to focus on what was noticeably absent – the direct participation of Aboriginal and Torres Strait Islander young people,” Commissioner Lewis posted on social media following Monday’s hearing, along with a video from the the 2024 Eric Deeral Indigenous Youth Parliament.

“Young people offer insight and perspectives that are often hidden in the blind spots of decision makers and ‘subject matter experts’.

“They are often most impacted by the outcomes of processes like this so must be a part of determining the destination and shaping the pathway to get there …

“I hope, as the inquiry proceeds, space is created for the meaningful participation of children and young people.”

National Children’s Commissioner Anne Hollonds said criminalising young people with complex or unmet needs makes it more likely they will go on to commit more serious crimes.

“We all agree that the states and territories are failing when it comes to protecting the rights of children in Australia and it is time for the federal government to step up and show some leadership,” she said, also urging the Commonwealth to implement the recommendations of her ‘‘ report, published last year.

“The most chilling thing was where the kids had no hope,” she told the inquiry.

“They had lost all hope of anything other than progressing to the adult jail.”

Ms Liddle explained to the inquiry that Aboriginal and Torres Strait Islander children are some of the most marginalised and disadvantaged in Australia.

“Many of our children contend with complex and stubborn structural determinants which drive their overrepresentation in criminal justice systems,” she said.

“Many children meeting the justice system are victims first: victims of poverty and of everyday systemic racism, of histories of trauma and of mistreatment …

“It makes it difficult to thrive in their education and work, it makes it difficult to find safe and secure housing, it undermines their prosocial activities like sport and can ultimately lead them to make mistakes and break the law.

“Changes to the justice system alone cannot shift these conditions, any response that doesn’t aim to address the structural and socioeconomic root causes, rather than the symptoms of crime, is certain to fail.”

The advocates also reminded those in Canberra that in almost every jurisdiction the age of criminal responsibility is just ten years of age, rather than the United Nations-recommended 14.

That means children as young as ten can be held criminally responsible for their actions and jailed.

“That’s appalling,” Jodie Griffiths-Cook, the ACT Public Advocate and Children and Young People Commissioner, said.

Western Australian Children’s Commissioner Jacqueline McGowan-Jones said the entire system needed to change.

“There is definitely a sense of futility when, as a society, we are not overwhelmed with grief and anger about children dying whilst incarcerated,” she said.

A spokesperson for federal Attorney-General Mark Dreyfus said the government was working to divert at-risk children away from the criminal justice system and had committed $99 million to establish the National Justice Reinvestment Program.

“While state and territory governments are primarily responsible for juvenile justice systems, the Commonwealth is committed to showing leadership on this important issue,” she said.

Last week the Productivity Commission revealed more than $1.5 billion was spent on youth justice across Australia last financial year.

The commission’s report on government services also revealed that nearly three quarters of all 10-13 year olds in detention were First Nations.