October 26, 2016
NSWCCL advocates for a juvenile justice system that:
- Prioritises the child’s best interests, including that it provides education equivalent to their rights within the community
- Caters for children’s specific needs, particularly in relation to age, physical and mental wellbeing and cultural background;
- Aims towards rehabilitation and social integration, not punishment, with detention only used as an absolute last resort in exceptional circumstances and for the shortest appropriate period of time;
- Upholds children’s rights, including the right to liberty, security, freedom from arbitrary detention, and to a fair trial;
- Ensures accessible and well-funded legal and social support services for children;
- Treats children with respect and dignity;
- Protects children from torture and other cruel, inhuman or degrading treatment;
- Preserves a child’s relationship with family and community; and
- Together with other social and educational institutions, undertakes proactive, preventative measures to divert young people from the criminal justice system and prevent re-offending.
In light of Australia’s human rights obligations under the International Covenant on Civil and Political Rights, the Convention on the Rights of the Childand the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishmentand associated United Nations juvenile justice guidelines, NSWCCL calls for:
- The minimum age of children’s criminal responsibility to be raised from 10 to 12 years old across all Australian states and territories;
- The maximum age of criminal responsibility for young people to be raised to 18 years old;
- The abolition of mandatory sentencing for children and young people;
- The reduction of rates of young people in detention pre-trial on remand;
- Clearer and more consistent prohibitions on punishment for children in detention across all states and territories;
- The separation of young people younger than 18 years from adults in detention facilities, accompanied by the removal of Australia’s reservations to Articles 10(2)(b) and (3) of the International Covenant on Civil and Political Rights, and Article 37(c) of the Convention on the Rights of the Child; and
- Ratification of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Third Optional Protocol to the Convention on the Rights of the Child.
NSWCCL supports policies aimed at reducing the incarceration rates of young Aboriginal and Torres Strait Islander peoples. These policies should be developed in a way that is consistent with their rights under the UN Declaration on the Rights of Indigenous Peoples, including but not limited to the right to self-determination, autonomy and freedom from discrimination.
Concerns over human rights violations in Australian juvenile justice centres were brought to national attention in July this year with Four Corners’ exposé on Don Dale Detention Centre in the Northern Territory. However, these revelations were not unprecedented. Independent statutory bodies, intergovernmental organisations and non-government organisations on a national and international scale alike have been consistently urging for reform of Australia’s juvenile justice processes and detention facilities for decades. Yet, as recently as 2012, the UN Committee on the Rights of the Child noted that Australia’s juvenile justice system ‘still requires substantial reforms for it to conform to international standards.’
As a result, while only a small proportion of Australia’s youth population has contact with the criminal justice system, there remain serious, yet unaddressed, concerns about protection of the rights of those who do. The overrepresentation of young Aboriginal and Torres Strait Islander people in detention facilities means these issues will disproportionately affect not only them, but their families and communities too. Since the Four Corners exposé went to air, a Royal Commission has been established to investigate the treatment of detained youth in the Northern Territory. It is imperative that now, all states and territories undertake not just to review their juvenile justice systems, but to act through law and policy to protect the rights of young people trialed and detained under their criminal justice system.
Since 2000, NSWCCL has produced two submissions relating to sentencing of youth offenders (in 2000 and 2007, respectively). This resolution intends to update NSWCCL’s position on juvenile justice. It identifies some key principles for an effective juvenile justice system, before pinpointing areas for law reform that would bring Australia closer to compliance with its human rights obligations.
 See e.g. Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84 (1997); Australian Human Rights Commission, Children’s Rights Report 2013 (2013)
<https://www.humanrights.gov.au/sites/default/files/document/publication/ChildrenRightsReport2013.pdf>; Amnesty International, A Brighter Tomorrow: Keeping Indigenous Kids in the Community and Out of Detention in Australia (2015) <http://www.amnesty.org.au/images/uploads/aus/A_brighter_future_National_report.pdf>.
 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, 60th sess, UN Doc CRC/C/AUS/CO/4 (28 August 2012) .
 Australian Institute of Health and Welfare, Youth Justice in Australia 2014-15 (April 2016) Australian Government <http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129554930> 2.