Youth justice policy setting back Closing the Gap

We also said some governments were not just “ignoring” their commitments, but actively putting the truck in reverse. We made this case specifically in relation to national commitments to reduce over-representation of young Aboriginal and Torres Strait Islander people in incarceration.

Several weeks ago, we released our report card on the progress of governments in closing the named gaps. We found that most states and territories had undone progress in reducing the number of Aboriginal and Torres Strait Islander children incarcerated.

Some jurisdictions were even invoking policies and legislative changes that would elevate the number of Indigenous young people in custody. This was starkly evident in Queensland, for example, where the presumption of bail for children was reversed.

Today, the situation is even worse. The Northern Territory has announced it will make even younger children criminally liable, while Victoria has scaled back its commitment to increase the minimum age of criminal responsibility. Obviously, and predictably, this will increase the number of Indigenous young people in incarceration.

It is ironic that the Productivity Commission mere months ago – as part of what some called our “scathing report” on government performance against the National Agreement on Closing the Gap – actually evaluated those two jurisdictions as taking promising steps to fulfil their commitments after they had raised (or had committed to raise) the minimum age of criminal responsibility only a year earlier.

We said that where governments had made progress on raising the age of criminal responsibility, it showed a “willingness to change their approach … to adopt policies championed for decades by Aboriginal and Torres Strait Islander people”.

So why now step so far backwards, after finally making a step forward? Especially after the compelling Northern Territory Royal Commission into the Protection and Detention of Children, and the Yoorrook Justice Commission?

The apparent rationale by some governments for exacerbating already alarmingly high rates of Aboriginal and Torres Strait Islander children over-represented in custody, by reversing progress in increasing the age of criminal responsibility, is that it will increase community safety from youth crime.

Let’s examine that argument more closely.

The proposition here is that the equity of Indigenous peoples should be subservient to community safety. But the premise is that the two principles are inconsistent. In fact, the very opposite is true.

The evidence suggests that locking up more children actually increases youth crime.

There was once a saying that if incarceration kept the community safe, then America would be the safest place on the planet. Actually, the US has now closed down youth detention centres in 20 states, with a corresponding decline in youth crime.

A longitudinal study of the first closure in New York shows that 10 years later, the youth arrest rate has plummeted by 86 per cent.

This is because it has replaced incarceration with successful interventions that address the causes of why children come into contact with the law in the first place. In the past 10 years alone, study after study shows diversion is far more successful in stopping child crime than charging or imprisoning a child.

In Bourke, NSW, the Maranguka justice reinvestment trials produced similar results. In Victoria, we have seen that young children who are sentenced or detained have an 83 per cent chance of offending again, compared to just under 50 per cent if they are not arrested and receive diversionary measures.

What does this have to do with raising or lowering the age of criminal responsibility? Over and above the failures of incarceration to keep crime down, extensive global research now clearly shows that the younger a child is at their first contact with the criminal justice system, the greater their chances of future offending.

A study of incarcerated youth found that children arrested under the age of 14 are three times more likely to reoffend as adults, as children arrested when they are over 14 years of age.

Governments across this country signed up to the National Agreement on Closing the Gap, prioritising a commitment to partnership with Aboriginal and Torres Strait Islander people. But partnership relies on a bedrock of trust, and trust is eroded or breached when governments knowingly contravene their own efforts at progress.

Both reports we published this year measuring performance against the Closing the Gap agreement were met with “we must do better”-style responses from governments.

But backward steps like this mean the entrenched inequality the agreement was designed to address will remain, or indeed worsen.