The youth justice system is a slippery slope of failure

The piece was first published by the Sydney Morning Herald

The Northern Territory has the highest rate of youth detention in Australia. It locks children up at almost five times the national average. Monday night's Four Corners episode also revealed that cruel, inhuman and degrading treatment is endemic in its principal youth detention facility. 

Stripping, hooding, tear gassing, holding young people in solitary confinement, or restraining them in chairs are all inexcusable practices. No circumstances ever justify exposing a child in our care and custody to such treatment.  

The Northern Territory is, without a doubt, in breach of its human rights obligations under the Convention against Torture and mistreatment; and the Convention on the Rights of the Child. Human rights law is clear. Everyone, and in particular children, should be protected from, rather than subjected to, this type of abuse.

I have known one of the young people who featured in Monday's Four Corners episode for close to a decade. I was his lawyer when he first came into contact with the criminal justice system. I know that there were countless missed opportunities for positive rather than punitive intervention in his life: for the system to make things better for him, rather than worse. 

But he was failed. Too often, the youth justice system is a slippery slope of failure. 

As a lawyer in the Northern Territory, I saw children lose their teenage years to a broken youth justice system. I saw them graduate to adult prison because there were no clear pathways out. I saw too many children being held unnecessarily in pre-trial detention – not guilty of any offence – because bail laws and conditions were impossibly strict. I saw children being held in appalling conditions. 

The Northern Territory's youth justice system is sub-standard: the main youth detention facility is a decommissioned adult prison; poor treatment is rife; Alice Springs doesn't have an adequate youth court; pre-trial detention is over-used; young people are over-policed; education is under resourced; meaningful treatment and reintegration programs are virtually non-existent; and culturally relevant diversion programs are few and far between.

Put simply, the Northern Territory's youth justice system is still not meeting the basic, minimum international standard: that it operate in the best interests of children. 

Aboriginal young people constitute more than 95 per cent of the youth detention population in the Northern Territory. Nationally, Aboriginal and Torres Strait Islander young peoples' over-imprisonment is also at crisis point. 

Underpinning any decent youth justice system is the understanding that children are inherently different to adults. Their capacity to understand the long-term impacts of their crimes, and to reflect and rehabilitate as they mature, are fundamentally different. So our response must be fundamentally different. For this reason, detention must only be used as a last resort. 

While the Northern Territory has a particularly poor youth justice system, all states and territories are in breach of human rights law by maintaining the minimum age of criminal responsibility as 10 years. 

The United Nation's expert committee on child rights is clear that any minimum age below 12 years is unacceptable. This is because evidence shows that the brain development of children under 12 years is not advanced enough, morally or psychologically, for criminal responsibility. There is no defensible reason for Australia's regressive approach. 

Further, evidence shows that once a young person is engaged in the criminal justice system, they are more likely to remain entangled in it. To this end, jurisdictions like the ACT are listening to the experts and implementing early intervention, diversion and rehabilitation measures. 

They're addressing the reasons why young people come into contact with the criminal justice system in the first instance and putting in place measures to avoid the domino effect of arrest, prosecution, detention and reoffending. The results are already proving positive. 

No doubt the announced royal commission will consider all of this. There are some basic parameters that should be immediately agreed to: funding for and implementation of the recommendations should come from the Commonwealth.

Critically, the Northern Territory government cannot be immune from the commission's investigation. There must be accountability. The government has known about this treatment for years.

It should also operate like the recently held Victorian Royal Commission into Family Violence: concrete time frames; expert commissioners and a political commitment from the beginning to implement all recommendations.

But the federal government should go further in its leadership role. It should ratify the Optional Protocol to the Convention against Torture. This would help prevent inhuman treatment like the kind we saw on Four Corners by requiring properly resourced, independent monitoring and inspection of places of detention.

Independent oversight is a safeguard against torture and mistreatment – particularly when it comes to children who are intrinsically more vulnerable to abuse. 

Ultimately, fair youth justice systems that foster rehabilitation are good for us all – they support safer and healthier communities. Treating children in inhuman and degrading ways only compounds the complex trauma many in the youth justice system are already grappling with. 

Cruelty can never be disguised as being in a child's best interests. The nation is right to be outraged. 

Ruth Barson is the director of Legal Advocacy at the Human Rights Law Centre.