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Tamara Walsh,[1]* Robin Fitzgerald,[1]** Lucy Cornwell,[1]*** Cara Scarpato[1]****
Australia’s criminalisation of children under 14 years of age is inconsistent with international human rights law principles and stands in stark contrast to the approach of most developed countries. In recognition of this, there is a national campaign underway to persuade Australian governments to raise the age of criminal responsibility. To support these calls to ‘raise the age’, it is important that we are aware of the alternative approaches that bring about better outcomes for children and the community. In this paper, we summarise the international literature outlining best practice approaches to the criminal offending of children aged 10 to 13 years. We conclude that there are myriad alternatives to criminalising children – and that criminalising children has a detrimental effect, both on the children themselves and society in general.
Academic research and practitioners’ experiences support calls for the age of criminal responsibility to be raised to 14 years.[1] The manner in which we respond to children’s offending behaviour must necessarily differ from the way we deal with adults because children lack an adult’s capacity for mature decision-making.[2] A child’s brain does not reach full maturity until they are well into adulthood – at around 25 years of age – so their decision-making may actually be considered ‘impaired’ when compared with that of adults.[3]
The United Nations Committee on the Rights of the Child has stated that a minimum age of criminal responsibility below the age of 12 years is ‘internationally unacceptable.’[4] In Australia, the minimum age of criminal responsibility is 10 years, however, the principle of doli incapax applies in all states and territories in respect of children younger than 14 years of age. This means that there is a presumption that children under 14 are not criminally responsible unless the prosecution can demonstrate that they had capacity to know that they ought not to have engaged in the behaviour.[5] The presumption is irrebuttable in respect of children who are less than 10 years of age, but rebuttable for children aged over ten, however, in practice, the presumption is often not even addressed in court.[6]
The effectiveness of incarceration as a deterrent has been questioned by many scholars and advocates.[7] For young people in particular, incarceration has an adverse impact on normal adolescent development.[8] International research has concluded that in respect of children, interaction with the criminal justice system should be minimised as a general rule.[9] The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) state that youth justice systems should ‘emphasise the well-being’ of the young person and ‘foster a process of personal development and education’ with a view to ‘reducing the need for intervention under the law.’[10]
Any response to the offending behaviour of children should be evidence-based.[11] The research shows that children should be diverted wherever possible if future offending is to be prevented or reduced.[12] Therapeutic jurisprudence scholarship suggests that the criminal law should take children’s developmental, social and psychological needs into account when imposing sanctions – the aim should be to positively influence the psychological and emotional well-being of children as well as reducing the risk of reoffending.[13]
There is a national campaign underway in Australia to ‘Raise the Age’ of criminal responsibility in all states and territories, so it is important that we learn more about the alternatives to criminalisation for children aged 10 to 13 years. In this paper, we aim to illustrate that raising the age of criminal responsibility is practicable because there are many alternatives to taking a punitive approach to children’s criminal offending.[14]
Youth Justice Acts apply in all Australian states and territories.[15] These Acts provide a framework for the special treatment of young people, emphasising their vulnerability, immaturity and inexperience.[16] Children are dealt with separately from adults throughout the criminal law process,[17] although in many ways, the youth justice system mirrors the adult system.
The sentencing options available for children are much the same as those for adults – probation, community service, fines, good behaviour bonds and imprisonment[18] – but children do tend to be sentenced differently to adults. Recent research conducted in south-east Queensland found that children are more likely to be reprimanded or sentenced to probation than adults, less likely to receive fines, and more likely to be sentenced to restorative justice processes.[19] Many jurisdictions offer youth-specific restorative justice sentencing options, such as youth justice conferencing.[20] In Queensland at least, children under 18 years of age are more likely to receive low-level penalties than adults, even when they have committed serious offences, including assaults and robbery.[21] This is appropriate, because the aim of criminal law intervention is to prevent future offending – there is no evidence that more severe penalties have a greater deterrent effect.[22]
For the same reasons, children are less likely to be sentenced to a period of custody than adults.[23] In Australia, the number of children in youth detention has remained relatively stable over the past five years, at around 900 children on any given night, or 30 per 100,000.[24] The number of children under youth justice supervision in the community fell slightly (by one percent) during the same period.[25] Of particular concern, however, is the fact that 63% of young people in detention are on remand whilst 11% of young people under supervision in the community remain unsentenced.[26] This means that a very high number of children are being held in custody despite the fact that they have not been found guilty of a crime.[27]
Around 20 percent of children subject to youth justice supervision in the community are aged 10 to 14 years,[28] though the number of 10- to 14-year-old children subject to youth justice supervision in the community has gradually decreased over the past ten years, from 95 per 100,000 children in 2008–09 to 73 per 100,000 in 2017–18.[29]
Despite this downward trend, the rate at which Indigenous children are subject to youth justice supervision has remained high, at around 1400 per 100,000.[30] Aboriginal and/or Torres Strait Islander children are particularly vulnerable to criminalisation: they are 15 times more likely to be under community-based youth justice supervision and 22 times more likely to be in youth detention.[31] Across Australia, more than 50 percent of young people in detention identify as Aboriginal or Torres Strait Islander.[32] The significant over-representation of Aboriginal and/or Torres Strait Islander people within the criminal law system in Australia should be considered a ‘national disgrace.’[33]
Children who are known to child protection authorities are also at high risk of youth justice involvement – more than 50 percent of Australian children aged 10 to 16 years under youth justice supervision across Australia have also received child protection services.[34] In some states, the rate of overlap is much higher: in Queensland, more than three quarters of children in the youth justice system are known to child safety services.[35]
The tragedy of intergenerational trauma and the legacy of colonisation is that many Aboriginal and/or Torres Strait Islander children fall into both categories – they are more likely to be subject to child protection intervention, and more likely to be under youth justice supervision.[36] Nearly one in five Indigenous children had contact with either the child protection or the youth justice system in 2015/16, compared with one in 30 non-Indigenous children.[37]
Research has indicated that there are two distinct groups of children who commit offences: those who engage in minor risk-taking behaviour, and those who engage in chronic, serious offending. Most children commit only minor offences and will desist from offending after one or two encounters with police, whilst a much smaller group persist and engage in more serious offending.[38]
The larger group of children, which engages in low-level offending only, tends to commit offences that are unplanned, impulsive, attention seeking and opportunistic. They are heavily influenced by their peer group, and generally commit offences in groups and in public spaces, which means their offending is highly visible and easily detectable. [39] Life course psychology confirms that since the human brain does not fully develop until an individual’s early to mid-20s, children’s capacity to self-regulate, control impulses, organise and make future-oriented decisions is limited.[40]
The small group of children who engage in more serious offending often have much more going on in their lives.[41] Children who commit serious offences, including violent offences, present with a range of risk factors. They have generally experienced high levels of family dysfunction – including family violence and family conflict, serious abuse, lack of supervision, or neglect.[42] They are also highly likely to have intellectual or psychiatric impairments, developmental or behavioural disorders and low educational attainment.[43]
Research from all over the world has demonstrated that children known to the youth justice system are often also known to child welfare services.[44] Australian research has found that the majority of the children in youth detention have child protection histories.[45] Children who are known to both systems have a higher chance of experiencing ‘poorer life outcomes, such as poor mental and physical health, and increased difficulties in accessing education, employment and housing.’[46] Indeed, multisystem involvement is itself a risk factor for entrenchment in the criminal law system.[47]
Most young people who commit serious offences have mental health conditions, or have experienced trauma.[48] This can lead children to self-medicate through drug use, and they can then become trapped in a cycle of offending as they commit crime for the purpose of obtaining drugs, and receive charges for drug offences. Research has consistently found associations between trauma, drug use and offending amongst young people who commit criminal offences.[49]
The influence of the peer group is significant because ‘the kids’ friends become their family’ – whilst they ‘aren’t necessarily a positive influence, they’re the most loyal people to them’[50] For Aboriginal and/or Torres Strait Islander children, and children from culturally and linguistically diverse backgrounds, separation from their families and ‘loss of cultural connection,’ can lead them to identify even more strongly with negative peer influences as they search for ‘belonging and connection.’[51]
Children’s offending – particularly serious crimes such as burglary and armed robbery – can also be related to poverty and homelessness. Some children commit these crimes to ‘provide for the family’ so meeting their basic needs will be crucial if their offending behaviour is to be addressed.[52]
Community members expect children and young people to be held accountable for their actions if they commit an offence.[53] However, the demand for accountability assumes that children and young people have had access to certain opportunities, including positive and pro-social interactions, which have the effect of deepening their sense of self and self-worth and enabling them to realise their capabilities and aspirations.[54] Not all children have had these opportunities.
Court proceedings are generally not effective in teaching young people about consequences. Research has suggested that children generally do not feel understood or listened to within the court system. If they do not consider the outcome to be ‘proportionate’ to the offence, or do not perceive the process to be fair, they may lose respect for the system.[55] This is consistent with developmental psychology research that suggests the importance of predictable and fair consequences when punishing children.[56]
Young people can be held accountable for their actions, and can experience consequences, without the involvement of the criminal law. A participant in a recent study by Walsh and Fitzgerald explained how their service responded when a child stole money from their petty cash:
We try and keep our consequences meaningful. We had a young person steal $100 from us out of petty cash... They’ll come back a couple of weeks later and we sit down with them and say, “well, what do you think would be the best way forward to make amends for this?” In this case, because he was really into graffiti, he’s supporting the graffiti workshop for four weeks an hour each time.[57]
There appears to be some public support for the idea that parents be held formally responsible for the criminal actions of their children. Some people believe that accountability should stretch to the responsible adults in the child’s life, particularly where children are in the care of the state. It has even been suggested that penalties be imposed on parents whose children commit offences. However, this approach has been widely criticised in the literature.[58] Punishing parents who are themselves traumatised or otherwise struggling to cope may be counterproductive, and may increase tension in the household.[59] Punishing parents and carers can also diminish a child’s sense of individual responsibility and thereby reduce the potential for a rehabilitative effect.[60]60 Of course, the implications for ‘statutory parents’ should also be considered, since many children who commit offences are under the guardianship of child protection services: if parents are to be held accountable for the actions of their children, the state should also have to answer for the offending behaviour of children in its care.
It must be remembered that even children who commit serious violent offences are likely to have come from highly disadvantaged, traumatic and abusive backgrounds.[60] This has implications for the kinds of interventions that are likely to address the causes of their offending behaviour. In the interests of community safety, it is important that we intervene in ways that will work, rather than ways we merely think will work.
Children’s courts in Australia are supposed to be less formal and less adversarial, yet in practice there is generally very little that distinguishes them from adult arrest courts.[61] Research suggests that traditional processing of young offenders through the court system is ineffective in terms of preventing recidivism, and can actually increase their chances of re-offending.[62]
Court appearances could be made more relevant to young people if they were provided with an opportunity to explain their circumstances and background. Certain features of problem-solving courts (eg drug courts, Murri courts) could be implemented in children’s courts. For example, the presence of elders in court could enhance its relevance to Indigenous children. There are a number of Indigenous courts operating in Australia, however they are not always open to young offenders.[63] In New South Wales and Western Australia, circle sentencing has been used in conjunction with formal court processes. Circle sentencing is based on traditional practices and has been conducted in Canadian Indigenous communities also. There, elders and community members are able to participate as part of the circle (the court) and in most cases, lead the process and make suggestions to actively engage and support both the accused person and the ‘victim’.[64] Circle sentencing has proven particularly effective in towns where Indigenous rates of youth crime are high.[65]
Children’s courts could also implement a case management approach, and make active referrals to support services, in the same way that drug courts do.
However, most of the research suggests that children should be kept out of the court system wherever possible. Merely bringing children into a courthouse can increase the chance that they will reoffend: McAra and McVie have concluded that ‘minimal intervention and maximum diversion’ is ‘the key to tackling serious and persistent offending’ in children.[66] Based on the findings of the large-scale Edinburgh Study of Youth Transitions and Crime, McAra and McVie conclude that labelling and stigmatising young people as ‘at-risk’ at an early age does seem to ‘create a self-fulfilling prophesy.’[67]
Penalties imposed on children are not effective in preventing reoffending. For example, more than 80 percent of children who are placed in detention in Australia will return to detention on new charges within 12 months.[68]
Researchers and advocates agree that youth detention should be used only as a last resort or, indeed, should never be used for children under 14 years of age.[69] Children are at risk of ‘criminal contamination’ whilst incarcerated, particularly if they are unsentenced,[70] they are at risk of sexual violence and other forms of abuse within correctional centres,[71] and they often experience a decline in their physical and mental health. The adverse social and health effects of youth detention can be lifelong.[72]
Sadly, some children say they would rather be in youth detention than at home, and some deliberately reoffend so they can return to the detention centre.[73] Elements of youth detention that appeal to children – such as the structure and routine, having their daily needs met, and being ‘looked after’ – could be replicated in the community. Most children in detention have experienced trauma, and they are unlikely to receive the care and nurturing they need in a custodial environment.[74] The same is true, of course, of residential care placements in the child protection system, and many children in detention will have experienced both.[75] In situations where youth detention effectively becomes a placement for children who have committed offences whilst in out of home care, child safety services should be held accountable for failing to provide children with a safe placement.
International experience suggests that there is another way. In Norway, a ‘welfare model’ of youth justice applies and only a handful of children are placed in youth detention each year.[76] Under the Norwegian model, children under 18 years of age are rarely even arrested. Instead, children who commit offences are dealt with by the Ministry of Children and Family Affairs which focuses on meeting the welfare needs of the young person and their family. Children may be ordered to participate in counselling, treatment and education or placed in foster care if necessary, but imprisonment is an absolute last resort, used only for a very small number of older children each year.[77] Even the United States has been working towards reducing the number of children who are incarcerated through the application of diversionary programs, and has seen youth detention numbers reduce by 60% since 2000 as a result.[78]
Community-based orders provide some benefits to children, and should be considered preferable to a custodial sentence. The most common community-based orders imposed by Queensland children’s courts are probation orders, conditional bail programs, community service orders, conditional release orders and restorative justice orders.[79] Non-custodial orders enable children to receive support in the community. Children on community-based orders are supervised by youth justice officers who provide them with extensive personalised support, linking them with programs and assisting with accommodation and social security.[80] Community service orders can allow young people to connect with the community and be exposed to positive role models and other prosocial influences. Restorative justice conferences require the child offender to meet with their ‘victim’, or a relevant agency such as the local council in the case of victimless offences, to discuss what restorative action could be taken to make amends for the offence.[81] There are obvious benefits to this in terms of encouraging understanding and empathy, and evaluations indicate high levels of satisfaction amongst young people who have been sentenced to restorative justice processes.[82]
However, for some children, a community-based order may set them up to fail. Indeed, Durnescu has concluded that community-based orders can also be experienced as ‘painful’ because of the loss of autonomy and time, the stigma, the financial implications and the risk of imprisonment if the order is breached.[83] Children may not be able to comply with community service orders because they may not know how to do so. Other orders may impose conditions that are too onerous for children to abide by – children may have caring responsibilities, they may be subject to violence or abuse, or they may be in crisis so compliance with curfews and other limitations on their movements may be impracticable. Restorative justice conferences may not be appropriate for all children, particularly those who do not have strong family support. The very concept of restoration may not be relevant to young people who themselves have been victims of crime or abuse.[84]
To be effective, community-based orders needed to be combined with supportive interventions.[85] Without appropriate supports in place, many children will breach their orders. One in five young people fail to complete their orders, and many more are subject to breach action whilst the order is on foot.[86] If a child does breach their order, the response should be appropriate and proportionate. If ‘the system’ reacts punitively, the benefits of diversion are lost. Instead of imposing a more severe penalty a simple breach should trigger an assessment, a review of the intervention plan and the provision of required support.
Research has concluded that children should be diverted from the criminal law system wherever possible. Diversion can take many forms:[87] it can range from formal police cautions and warnings, to court-ordered mental health or drug treatment.[88] Diversion initiated at the policing stage is itself highly variable: it may be as simple as requiring the child to apologise to the victim in a police officer’s presence at the time, or as onerous as mandated program participation.[89]
Police can divert young people without imposing any order at all. In the UK, this is referred to as ‘street RJ’ because it involves the use of restorative justice techniques in the course of police beat duties – it can be done informally or by using more formal cautions.[90] Street RJ involves police taking a ‘welfare’ rather than a ‘punitive’ approach to children’s offending behaviour,[91] by referring them to community organisations for support straight away instead of arresting them.
International meta-analyses have found that police-led diversion prevents recidivism amongst children, particularly first-time offenders who have committed only low-level crimes.[92] The timing of diversion is particularly important for ‘low-risk’ offenders: they are much less likely to reoffend if they are diverted at the first point of contact, rather than being charged first and then diverted.[93] Also, for low-risk youth, cautions are more successful in reducing recidivism than diversion programs – but for high-risk youth, programs incorporating treatment are more successful than cautions.[94]
The international research suggests that diversion programs delivered by the criminal law system are more successful in reducing recidivism than those delivered by ‘private agencies’ when it comes to criminalised youth.[95] Also, studies have shown that children who complete mandated intervention programs are less likely to reoffend than those who choose not to participate, or drop out.[96] It must be remembered that the children who do not complete these programs may also be those with higher and more complex needs,[97] and this needs to be borne in mind in program design and evaluation.
Of course, recidivism rates are not the only measure of success, nor are they necessarily the best measure.[98] The goal of intervention should be to help children ‘feel empowered to make a positive contribution’, ‘set goals for their future’ and have ‘a sense of what they want to do with their life.’[99] Research has recognised the importance of encouraging young people to work towards a positive future, rather than being defined by past behaviours.[100] The most effective programs are those that combine behavioural management techniques and education support for children, with family support and parenting skills training.[101]
One option that avoids criminalisation is the imposition of civil orders. Civil (that is, non-criminal) orders could mandate treatment or program completion without the young person being charged or receiving a criminal record.
In both the UK and the US, the use of civil orders to address the offending behaviour of children has been trialled. In the UK, anti-social behaviour orders were introduced as an alternative to criminalisation for low-level ‘nuisance-type’ offending – these orders included behavioural conditions, for example stipulating that a person should not use offensive language, engage in certain behaviours, or enter certain areas or places.[102] They were intended to operate as ‘preventative tools’ to target youth crime.[103] However, evaluations identified a number of problems with them. Of most concern was the fact that anti-social behaviour orders provided a gateway into the criminal law system for many children, rather than diverting them from it. Police warning letters were often presented to children and young people for ‘ordinary acts of childhood’ such as ‘throwing of items’ and ‘shouting.’[104] Further, a substantial proportion of young people breached their orders, ended up before the criminal courts and received custodial sentences for what was initially a trivial matter.[105] This meant that for some young people, anti-social behaviour orders became an additional, and sometimes ‘contradictory’ point of contact with the youth justice system.[106] They were abolished in England and Wales in 2014.
In the US, ‘civil citation programs’ seem to have had more success. Civil citation provides police with an alternative to arresting a young person – instead they are referred to alternative services for support.[107] If they complete the program specified in the citation, the arrest is not recorded.[108] An evaluation of the use of civil citations in Florida found there were significantly fewer arrests of young people in some counties, and very few instances of net-widening.[109] Further research in an Australian context is needed to determine whether or not civil orders would result in criminalisation anyway, or whether they could act as an effective diversionary tool.
Educators are ‘first responders’ when it comes to children who are at risk of criminalisation but unfortunately, schools often take a ‘punitive’ approach to children who have committed offences.[110] Children who are excluded – or disengage – from school miss out on acquiring fundamental literacy and numeracy skills. Once children have disengaged from school, they find it very challenging to re-engage later on.
School is a ‘massive protective factor, even lifelong’ for criminalised children.[111] If children are not able to attend school, they will generally be out in the community during the day, and this makes them vulnerable to criminal charges.
The link between school exclusions and the entry of children and young people into the youth justice system is well-established.[112] The overuse of school disciplinary procedures and in-school arrests results in significant disruption to children’s education and creates pathways into the youth justice system.[113] ‘Zero tolerance’ policies when it comes to criminal offending dramatically increase rates of suspension, expulsion and youth justice referrals,[114] and are more likely to be applied against children with disabilities and students of minority ethnicities.[115] In the US, some states have introduced legislation prohibiting suspension and exclusions for young children for these reasons.[116]
‘In-school suspension’ programs, which mandate school-based community service may offer an alternative to suspension and expulsion. They could also be used as a form of police diversion. This way, children could undertake community work and receive educational information related to their offending.
Re-engagement in education or training has the dual benefits of allowing children to succeed at something, and build self-esteem as a result, as well as removing unsupervised children from the community to reduce the opportunity for offending. The Queensland Government’s ‘Transition 2 Success pathways’, or T2S, is an alternative education and occupational training program for at-risk young people or those already involved in the youth justice system.[117] It provides a supportive and therapeutic environment that supports and partners children with local businesses, TAFE and community organisations to gain certificate qualifications. The Queensland Government reports that there is evidence of success in reducing reoffending and supporting young people to regain hope for the future.[118]
School-based diversion programs in the US have focused on providing mental health support to children who are at risk of criminalisation.[119] In some areas, ‘Children’s Mobile Crisis Teams’ provide emergency intervention, assessments and referral, for children with mental health and behavioural conditions.[120] Schools are encouraged to refer children to these mobile crisis teams as an alternative to expulsion or police involvement, and this has provided an effective diversionary pathway for children who would otherwise have been criminalised.[121] These programs have been found to be particularly effective for ‘high risk offender’ groups because they offer more specialised and targeted interventions.[122] Another essential aspect of successful programs is the provision of training for school staff in mental health identification and support, behavioural management and connections to community support services, as well as working with schools to create effective disciplinary policies.[123]
In Queensland, there has been an increase in the number of school-based police officers. School-based police officers are common in the US: 72% of schools have a police officer or security officer on campus and their presence correlates highly with school-based arrests.[124] Research in the US has shown that many children enter the criminal law system as the result of an in-school incident.[125] It has been recognised that the emphasis should shift towards providing children with the behavioural and educational supports they require to avoid criminalisation and stay in school.[126] In some areas, it is now compulsory for officers to divert eligible children instead of arresting them, and ensure that an assessment and referral takes place within a specified time-frame.[127] One evaluation found a 54% reduction in school-based arrests as a result of this initiative.[128] Of course, the US context is very different to the Australian context, however we would not wish to see school-based policing contribute to higher arrest rates in disadvantaged areas. Police who interact with children in schools should focus on rebuilding trust with alienated young people, and ensuring their communications with them are supportive and non-confrontational.
Research has found that interventions that involve the child’s family are associated with lower recidivism rates, and longer non-offending periods than those that focus on the child alone.[129] In fact, a meta-analysis of 28 studies on a range of diversion programs found that only family-based programs achieved notable decreases in recidivism.[130]
A child’s family and peers have a profound influence on their offending behaviour. This necessitates a holistic approach to intervention. Any progress that is made with children can ‘go down the drain’ once the child returns home. Research has found that ‘family coaching’ models – which provide intensive in-home family therapy for a period of weeks – can reduce recidivism and change attitudes and behaviours of children and their parents.[131]
Having said this, there are a number of barriers to successful engagement with the families of children who are at risk of criminalisation. Often ‘mum or dad needs more help than the young person.’[132] It must also be remembered that many criminalised children have been removed from their families by child protection services. These children should be provided with intensive support aimed at enabling them to maintain relationships with their birth families because they are likely to return home when they exit the care system. For children who cannot remain at home, placing them in residential care is often the worst possible option – children are highly likely to interact with the criminal law system whilst in residential care facilities.[133] International research has suggested that therapeutic day programs for children in foster care or residential care, and treatment foster care placements, deliver the best outcomes for criminalised children who need to be removed from their families.[134]
A number of successful programs have been launched around Australia aimed at cultural re-engagement and support so that Aboriginal and/or Torres Strait Islander children can maintain, or regain, a sense of belonging and connection with their communities. In Bourke, New South Wales, a community-led justice reinvestment program aims at rehabilitating children by diverting funds from the criminal justice system straight into the community where it is most needed. The strategy empowers the community to ‘coordinate the right mix and timing of services through an Aboriginal community owned and led, multi-disciplinary team working in partnership with relevant government and non-government agencies.’[135]
In Western Australia, three large Indigenous-led projects exist to help children reconnect with themselves, their culture and community. The ‘Eugene Eades’ cultural camps use culture and connections to instil confidence in young people who have committed offences. Similarly, the Yiriman Project is an intergenerational, ‘on-country’ program developed and delivered by Indigenous elders.[136] The Productivity Commission has reported that the program builds confidence in children, improves their sense of self-worth and reduces the risk of self-harm and substance abuse in participating communities.[137] The ‘Deadly Sista Girlz’ program aims to use Aboriginal and Torres Strait Islander female role models to empower and enable young girls to make informed decisions about their personal health and wellbeing to lead a positive and healthy lifestyle.[138] The Deadly Sista Girlz program helps in building self-esteem and identity, changing attitudes and reducing the risk of offending behaviour.
Holistic cultural approaches have proven effective both domestically and internationally, however Indigenous-designed cultural services and camps often struggle to secure ongoing funding.[139] Since building consistent relationships is so important periodic and ‘trial-only’ funding detracts from the success of these programs.
By examining the international literature, we see that there are myriad alternatives to criminalising children when they commit offences. We have identified a range of alternatives to criminalisation, the most important one being ‘take no action’. Most children who offend will ‘age out’ of this behaviour, and the best thing we can do for them is to allow them to do this without it affecting the rest of their lives.
In respect of those children who commit serious offences over an extended period of time, we need to be asking ‘why?’ We need to understand what is going on beneath the surface if we are to prevent future offending.
When devising laws and programs aimed at responding to children’s offending behaviour, there are some key points to keep in mind:
1. There are two broad types of child offenders: those who engage in what is essentially ‘adolescent risk-taking behaviour’ and those who engage in serious chronic offending.
2. Most children will ‘age out’ of criminal offending. For this group, the best outcomes in terms of recidivism and life chances are achieved by minimising or eliminating their contact with the criminal law system. They respond best to informal cautions by police. If these children are formally charged, they are more likely to reoffend.
3. For the small group of children who engage in more serious offending over a longer period of time, a different approach is needed. These children are likely to be known to child protection services, and may have experienced trauma, poverty, homelessness, mental health problems and abuse or neglect. The best response for these children is to provide intensive support aimed at meeting their health, education, welfare and basic needs. Many of these children have not had supportive adults around them. They may not be able to complete community service orders without appropriate supports in place. They need encouragement, love and a hope for the future.
4. Criminal law interventions can have lasting detrimental effects on young people. Even visible police presence can send the wrong message to children, particularly if the manner in which police communicate with young people is demeaning or accusatory.
5. Suspending or excluding children from school increases their risk of offending, and reduces their life-chances by limiting their capacity to develop literacy and numeracy skills.
Future research must seek the input of people with lived experience. We need to know more about ‘what works’ from the point of view of those who have been through these processes if the best outcomes are to be achieved.
[1] Acknowledgments: This research was funded by Logan City Council and the Queensland Department of Children, Youth Justice and Multicultural Affairs. Any opinions expressed are those of the authors and do not represent the views of these departments/organisations. The authors thank Caitlin Brown for her research assistance.
* Professor of Law, School of Law, University of Queensland.
** Associate Professor, School of Social Science, University of Queensland
*** LLB Student and Research Assistant, University of Queensland
**** LLB Graduate, University of Queensland
[1] T Crofts, ‘Will Australia Raise the Minimum Age of Criminal Responsibility?’ (2019) 43(1) Criminal Law Journal 26.
[2] M Marien, ‘Juvenile Justice and Community-Based Sentencing for Juveniles in New South Wales’ (Seminar Paper, China-Australia Human Rights Technical Cooperation Program - Sentencing and Related Issues in Judicial Practice, May 2011) 2; P McCarthy, V Schiraldi and M Shark, ‘The Future of Youth Justice: A Community-Based Alternative to the Youth Prison Model’ (Research Paper No 2, Harvard Kennedy School and National Institute of Justice, 21 October 2016) 5.
[3] M Arain et al, ‘Maturation of the adolescent brain’ (2013) 9 Neuropsychiatric disease and treatment 449, 449; M White, ‘Youth Justice and the Age of Criminal Responsibility: Some Reflections’ [2019] AdelLawRw 23; (2019) 40(1) Adelaide Law Review 257.
[4] UN Committee on the Rights of the Child, General Comment 10: Children’s Rights in Juvenile Justice, (2007) 11 [12].
[5] Crimes Act 1914 (Cth) s 4N; Criminal Code (ACT) s 26; Criminal Code (Qld) s 29(2); Criminal Code (Tas) s 18(2); Criminal Code (WA) s 29; RP v The Queen [2016] HCA 53; (2016) 259 CLR 641. Doli incapax is a common law presumption in New South Wales, South Australia and Victoria. In the Northern Territory, the presumption of doli incapax is derived from the Crimes Act 1914 (Cth), and formerly the Criminal Code (NT) s 38(2).
[6] K Fitz-Gibbon and W O’Brien, ‘A Child’s Capacity to Commit Crime: Examining the Operation of Doli Incapax in Victoria (Australia)’ (2019) 8(1) International Journal for Crime, Justice and Social Democracy 18, 20; B Atkinson, Queensland Government Department of Child Safety, Youth and Women, Report on Youth Justice (Version 2, 8 June 2018) 105. See also RP v The Queen [2016] HCA 53; (2016) 259 CLR 641, 650-651.
[7] B Goldson et al, Youth Justice and Penality in Comparative Context (Routledge, 2020), 145, 196, 197; P Cox and B Godfrey, ‘The “Great Decarceration”: Historical Trends and Future Possibilities’ (2020) 59(3) The Howard Journal of Crime and Justice 261, 261-262; P Hall and MD Chong, ‘Prison Social Climate and its Impact on Reintegration and Recidivism’ (2018) 24 James Cook University Law Review 231; B Goldson, ‘Child Imprisonment: A Case for Abolition’ (2005) 5(2) Youth Justice 77; T Mathieson, The Politics of Abolition Revisited (Routledge, 2015); AM McLeod, ‘Prison Abolition and Grounded Justice’ (2015) 62(5) UCLA Law Review 1156.
[8] E Barnert et al, ‘How Does Incarcerating Young People Affect Their Adult Health Outcomes?’ (2017) 139(2) Paediatrics 1, 7; L Steinberg and R Haskins, ‘Keeping Adolescents Out of Prison’ (Policy Brief, The Future of Children, Fall 2008), 3.
[9] L McAra and S McVie, ‘Youth Crime and Justice: Key Messages from the Edinburgh Study of Youth Transition and Crime’ (2010) 10(2) Criminology and Criminal Justice 179.
[10] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’), A/RES/40/33, 1985, Rules 1.2, 1.3, 5.1.
[11] S Case, ‘Challenging the Reductionism of “Evidence-Based” Youth Justice’ (2021) 13(4) Sustainability 1735; CS Schwalbe et al, ‘A meta-analysis of experimental studies of diversion programs for juvenile offenders’ (2012) 32(1) Clinical Psychology Review 26, 30; A Wilcox, ‘Evidence-Based Youth Justice? Some Valuable Lessons from an Evaluation for the Youth Justice Board’ (2003) 3 Youth Justice 21.
[12] McAra and McVie (n 9).
[13] M King, ‘Therapeutic Jurisprudence, Child Complainants and the Concept of a Fair Trial’ (2008) 32(5) Criminal Law Journal 303; D Bryant and J Faulks, ‘The “Helping Court” Comes Full Circle: The Application and Use of Therapeutic Jurisprudence in the Family Court of Australia’ (2007) 17(2) Journal of Judicial Administration 93. Note that s 9(1)(b) of the Penalties and Sentences Act 1992 (Qld) lists the purposes of sentencing to include rehabilitation.
[14] As to the punitive nature of current approaches to youth justice, see Goldson et al (n 7) 40-43. In Queensland, see further MD Chong, J Fellows and R Kocsis, ‘Beyond Mere Deterrence: Rethinking Criminal Justice Policies for North Queensland’ (2018) 24 James Cook University Law Review 209; T Hage and J Fellows, ‘Combatting the Over-Representation of Indigenous Youth in the Queensland Criminal Justice System Through “Justice Reinvestment”’ (2018) 24 James Cook University Law Review 147.
[15] Children and Young People Act 2008 (ACT); Young Offenders Act 1997 (NSW); Youth Justice Act 2005 (NT); Youth Justice Act 1992 (Qld); Young Offenders Act 1993 (SA); Youth Justice Act 1997 (Tas); Children, Youth and Families Act 2005 (Vic); Young Offenders Act 1994 (WA).
[16] K Richards and L Renshaw, ‘Bail and Remand for Young People in Australia: A National Research Project’ (Report No 125, Australian Institute of Criminology, Research and Policy Series, 2013) 32.
[17] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 37; Atkinson (n 6) 25; Australian Institute of Health and Welfare, Youth Detention Population in Australia (Bulletin No 148, February 2020) 24.
[18] C Cunneen, R White and K Richards, Juvenile Justice: Youth and Crime in Australia (Oxford University Press, 4th ed, 2013) 253-4.
[19] T Walsh and R Fitzgerald, Logan Community Justice Centre: Community Consultation and Design Report (University of Queensland, 2020) 30.
[20] T Gal, ‘Setting Standards for Child-Inclusive Restorative Justice’ (2021) 59(1) Family Court Review 144; J Joudo Larsen, Restorative Justice in the Australian Criminal Justice System (Australian Institute of Criminology Report No 127, 2014) vii, 6.
[21] Walsh and Fitzgerald (n 19) 30.
[22] T Bergin, The Evidence Enigma: Correctional Boot Camps and Other Failures in Evidence-Based Policymaking (Routledge, 2016). As to the purposes of sentencing in Queensland, see Penalties and Sentences Act 1992 (Qld) s 9(1).
[23] Australian Institute of Health and Welfare, Youth Justice in Australia 2018-2019 (Commonwealth of Australia, May 2020) 40.
[24] Australian Institute of Health and Welfare (n 17).
[25] Australian Institute of Health and Welfare, Australia’s Welfare: Youth Justice (Commonwealth of Australia, 2020).
[26] Ibid. The figures may be higher in Queensland: in 2018/19, 87% of young people in detention were on remand: Australian Institute of Health and Welfare (n 23) 16.
[27] See further Goldson et al (n 7), 40-41, 90.
[28] Australian Institute of Health and Welfare, Australia’s Children (Commonwealth of Australia, 2020).
[29] Ibid.
[30] Australian Institute of Health and Welfare (n 23) 10.
[31] Ibid.
[32] Australian Institute of Health and Welfare (n 17) 11.
[33] See for example Australian Law Reform Commission, Pathways to Justice: Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, 2018) 22.
[34] Australian Institute of Health and Welfare, Young People Under Youth Justice Supervision and in Child Protection 2018-19 (Commonwealth of Australia, 2020) 7. ‘Youth justice supervision’ was defined as being in detention or subject to a community-based supervision order. Being ‘involved in the child protection system’ was defined as being subject to an investigated notification, being subject to a care and protection order, or being in out of home care (at 5-6). See also T Walsh, ‘From child protection to youth justice: Legal responses to the plight of “cross-over kids”’ [2019] UWALawRw 24; (2019) 46(1) University of Western Australia Law Review 90.
[35] Queensland Child Protection Commission of Inquiry, Taking Responsibility: A Roadmap for Queensland Child Protection (Final Report, June 2013) 36. See also K McMillan and M Davis, Independent Review of Youth Detention (Report, 2017) 214.
[36] Australian Institute of Health and Welfare (n 34) 7.
[37] Ibid.
[38] K Shirley, The Cautious Approach: Police Cautions and the Impact on Youth Reoffending (Crime Statistics Agency, 2017) 9; L Jordan and J Farrell, ‘Juvenile Justice Diversion in Victoria: A Blank Canvas?’ (2013) 24(3) Current Issues in Criminal Justice 419; S Dennison, A Stewart and E Hurren, ‘Police Cautioning in Queensland: The Impact on Juvenile Offending Pathways’ (2006) 306 Trends and Issues in Crime and Criminal Justice 1.
[39] Marien (n 2) 2.
[40] National Research Council, Reforming Juvenile Justice: A Developmental Approach (The National Academies Press, 2013) 2.
[41] TE Moffitt, ‘Life-course-persistent versus adolescence-limited antisocial behavior’ in D Cicchetti and DJ Cohen (eds), Developmental psychopathology (Wiley, 2nd ed, 2006) 570-598. See further Queensland Family and Child Commission, The age of criminal responsibility in Queensland (Report, 2017) 16-21.
[42] FJ Gerard et al, ‘An exploration of the current knowledge on young people who kill: A systematic review’ (2014) 19(5) Aggression and Behaviour 559.
[43] L McAra and S McVie, ‘Understanding youth violence: The mediating effects of gender, poverty and vulnerability’ (2016) 45 Journal of Criminal Justice 71.
[44] See particularly A Gerard et al ‘“I’m not getting out of bed!” The criminalisation of young people in residential care’ (2019) 52(1) Australian and New Zealand Journal of Criminology 76; J Shaw ‘Residential care and criminalisation: the impact of system abuse’ (2017) 16(3) Safer Communities 112; C Fitzpatrick and P Williams ‘The neglected needs of care leavers in the criminal justice system: Practitioners’ perspectives and the persistence of problem (corporate) parenting’ (2017) 17(2) Criminology and Criminal Justice 175; E Stanley ‘From Care to Custody: Trajectories of Children in Post-War New Zealand’ (2017) 17(1) Youth Justice 57; Scottish Government, Alternatives to Secure Care and Custody: Guidance for Local Authorities, Community Planning Partnerships and Service Providers (Guide, June 2011) 28.
[45] Queensland Child Protection Commission of Inquiry (n 35); McMillan and Davis (n 35) 214.
[46] Queensland Family and Child Commission, The Criminalisation of Children Living in Out-of-Home Care in Queensland (Report, 2018) 5; Walsh (n 34).
[47] S Vidal et al, ‘Multisystem-Involved Youth: A Developmental Framework and Implications for Research, Policy and Practice’ (2019) 4(1) Adolescent Research Review 15-29.
[48] LA Underwood and A Washington, ‘Mental illness and juvenile offenders’ (2016) 13(2) International Journal of Environmental Research and Public Health 228.
[49] K Peltonen et al, ‘Trauma and violent offending among adolescents: a birth cohort study’, (2020) 74(10) Journal of Epidemiology and Community Health 845-850, 848; S Lawler et al, ‘Themes in sentencing young adults charged with serious violent crime involving alcohol and other drugs’, (2020) 53(3) Australian & New Zealand Journal of Criminology 411, 414; A Putniņš, ‘Substance use and the prediction of young offender recidivism’, (2003) 22(4) Drug and Alcohol Review 401, 401.
[50] T Walsh and R Fitzgerald, ‘Youth justice, community safety and children’s rights in Australia’ (Unpublished Paper, 2021).
[51] Walsh and Fitzgerald (n 19) 43.
[52] T Schlesinger, ‘Decriminalizing Racialized Youth through Juvenile Diversion’ (2018) 28(1) The Future of Children, 67; Walsh and Fitzgerald (n 19) 41.
[53] AH Newbury, ‘Youth Crime: Whose Responsibility?’ (2008) 35(1) Journal of Law and Society 131. See also S Smith, ‘Townsville’s voice: local solutions to address youth crime’ (Report, 2018) 10.
[54] B Godfrey et al, Young Criminal Lives: Life Courses and Life Chances from 1850 (Oxford Scholarship Online, 2017) 61.
[55] DE Arredondo, ‘Child Development, Children's Mental Health and the Juvenile Justice System: Principles for Effective Decision-Making’ (2003) 14(1) Stanford Law and Policy Review 13.
[56] DO Brink, ‘Immaturity, Normative Competency and Juvenile Transfer: How (Not) to Punish Minors for Major Crimes’ (2004) 82(6) Texas Law Review 1555.
[57] Walsh and Fitzgerald (n 19) 61.
[58] EM Brank and V
[59] TC Hutchinson, G Parada, and R Smandych, ‘“Show me a bad kid and I’ll show you a lousy parent”: Making parents responsible for youth crime in Australian and Canadian contexts’ (2009) 26(2) Australasian Canadian Studies 49.
[60] T Weinstein, ‘Visiting The Sins of the Child on the Parent: The Legality of Criminal Parental Liability Statutes’ (1991) 64 Southern California Law Review 859; S Haynes, AC Cares and RB Ruback, ‘Juvenile Economic Sanctions: An Analysis of their Imposition, Payment, and Effect on Recidivism’ (2014) 13(1) Criminology & Public Policy 31.
[60] AM Fanniff et al, ‘Risk and Outcomes: Are Adolescents Charged with Sex Offenses Different from Other Adolescent Offenders?’ (2017) 46(7) Journal of Youth and Adolescence 1394; S Dennison and B Leclerc, ‘Developmental Factors in Adolescent Child Sexual Offenders: A Comparison of Nonrepeat and Repeat Sexual Offenders’ (2011) 38(11) Criminal Justice and Behavior 1089;
[61] R Sheehan and A Borowski, Australia's Children's Courts Today and Tomorrow (Springer Netherlands, 2013) 1-2.
[62] A Petrosino, C Turpin-Petrosino and S Guckenburg, ‘Formal System Processing of Juveniles: Effect on Deliquency’ (2010) 6(1) Campbell Systematic Reviews 1, 37; D Huizinga and KL Henry, ‘The Effect of Arrest and Justice System Sanctions on Subsequent Behaviour: Findings from Longitudinal and Other Studies’ in AM Liberman (ed), The Long View of Crime: A Synthesis of Longitudinal Research (Springer, 2008) 220, 231; M Esposito et al, ‘The Consequences of Contact with the Criminal Justice System for Health in the Transition to Adulthood’ (2017) 8(1) Longitudinal Life Course Studies 57; R Apel and G Sweeten, ‘The Effect of Criminal Justice Involvement in the Transition to Adulthood’ (Final Technical Report, September 2009) National Institute of Justice.
[63] Standing Committee on Aboriginal and Torres Strait Islander Affairs, Doing Time – Time for Doing: Indigenous youth in the criminal justice system, (House of Representatives, Canberra, June 2011), 236 [7.170]; E Marchetti and K Daly, ‘Indigenous courts and justice practices in Australia’ (2004) 277 Trends and Issues in Crime and Criminal Justice 1.
[64] The Townsville ‘High Risk Youth Court’ adopts some of these features: see Chong, Fellows and Kocsis (n 14) 217.
[65] See further Amnesty International, 7 Alternatives to Prison for Kids (Web page, 10 April 2017) <https://www.amnesty.org.au/7-alternatives-to-prison-for-kids>.
[66] McAra and McVie (n 9).
[67] Ibid 189. As to labelling theory more generally, see J Deakin, C Fox and R Matos, ‘Labelled as “risky” in an era of control: How young people experience and respond to the stigma of criminalized identities’ (2020) European Journal of Criminology 1; B Goldson and J Muncie (eds), Youth Crime and Justice (Sage Publications Ltd, 2nd ed, 2015).
[68] Australian Institute of Health and Welfare, Young people returning to sentenced youth justice supervision 2018-19 (Commonwealth of Australia, 2020) 13.
[69] P McCarthy, V Schiraldi and M Shark, ‘The Future of Youth Justice: A Community-Based Alternative to the Youth Prison Model’ (Research Paper No 2, Harvard Kennedy School and National Institute of Justice, 21 October 2016) 2; S Ryon, K Early and A Kosloski, ‘Community-based and family-focused alternatives to incarceration: A quasi-experimental evaluation of interventions for delinquent youth’ (2017) 51 Journal of Criminal Justice 59, 60; Goldson (n 7).
[70] Marien (n 2) 10.
[71] A Beck and R Rantala, Sexual victimization reported by juvenile correctional authorities, 2007–12 (Report, U.S. Department of Justice, January 2016); C Dierkhising, A Lane, and M Natsuaki, ‘Victims behind bars: A preliminary study of abuse during juvenile incarceration and post-release social and emotional functioning’ (2014) 20(2) Psychology, Public Policy and Law 181.
[72] Barnert et al (n 8); Royal Commission into the Protection and Detention of Children in the Northern Territory (Interim Report, March 2017) 36 (cf Final Report, November 2017, Vol 2A); Australian Medical Association, Aboriginal and Torres Strait Islander Health Report Card 2012-2013: The Healthy Early Years – Getting the Right Start in Life (Report, 10 December 2013) 1 <https://ama.com.au/sites/default/files/documents/>.
[73] Walsh and Fitzgerald (n 50).
[74] Royal Commission Report (n 73); McCarthy, Schiraldi and Shark (n 2) 5.
[75] Queensland Family and Child Commission (n 41); Walsh (n 34).
[76] J Winterdyk, GA Antonopoulos and R Corrado, ‘Reflections on Norway's juvenile justice model: A comparative context’ (2016) 18(2) Crime Prevention and Community Safety 105, 111.
[77] Ibid.
[78] W Sawyer, ‘Youth Confinement: The Whole Pie 2019’ (Report, Prison Policy Initiative, 19 December 2019) <https://www.prisonpolicy.org/reports/youth2019.html>.
[79] Queensland Government Statistician’s Office, Queensland Treasury, Justice Report, Queensland, 2018-19: Criminal justice statistics (2020) 70, 71, 74; Walsh and Fitzgerald (n 19).
[80] Atkinson (n 6) 25; S Pieper, A Jones and S Galton, ‘Integrated case management: A holistic and collaborative approach to the case management of high risk young offenders in Townsville, Australia’ (2018) 24 James Cook University Law Review 253.
[81] M Riley and H Hayes, ‘Youth restorative justice conferencing: Facilitator's language - help or hindrance?’ (2018) 21(1) Contemporary Justice Review 99; M Suzuki and W Wood, ‘Is restorative justice conferencing appropriate for youth offenders?’ (2018) 18(4) Criminology & Criminal Justice 450, 452; S Little, A Stewart and N Ryan, ‘Restorative Justice Conferencing: Not a Panacea for the Overrepresentation of Australia’s Indigenous Youth in the Criminal Justice System’ (2018) 62(13) International Journal of Offender Therapy and Comparative Criminology 4067, 4068; M Zappavigna and JR Martin, Discourse and Diversionary Justice: An Analysis of Youth Justice Conferencing (Palgrave Macmillan, 2017) 2.
[82] H Hayes and K Daly, ‘Conferencing and Re-offending in Queensland’ (2004) 37(2) Australian and New Zealand Journal of Criminology 167. See also Queensland Department of Child Safety, Youth and Women, Restorative Justice Project: 12 Month Program Evaluation, (Report, 2018).
[83] I Durnescu, ‘Pains of probation: Effective practice and human rights’ (2010) 55(4) International Journal of Offender Therapy and Comparative Criminology 530, 533.
[84] T Ward and R Langlands, ‘Restorative justice and the human rights of offenders: Convergences and divergences’ (2008) 13(5) Aggression and Violent Behaviour 355.
[85] R Smith ‘Diversion, rights and social justice’ (2020) 21(1) Youth Justice 18; K Haines et al, ‘The Swansea Bureau: A model of diversion from the Youth Justice System’ (2013) 41(2) International Journal of Law, Crime and Justice 167.
[86] Australian Institute for Health and Welfare (n 23) 15; Productivity Commission, Report on Government Services 2019 Part C: Justice (January 2019).
[87] HA Wilson and RD Hoge, ‘The Effect of Youth Diversion on Recidivism: A Meta-Analytic Review’ (2013) 40(5) Criminal Justice and Behaviour 497, 499; Smith (n 86) 4-5.
[88] D O’Mahony, ‘Restorative Justice and Youth Justice in England and Wales: One Step Forward, Two Steps Back’ (2012) 21(1) Nottingham Law Journal 86, 91; Smith (n 86), 5-6.
[89] C Cunneen, B Goldson and S Russell, ‘Human rights and youth justice reform in England and Wales: A systemic analysis’ (2018) 18(4) Criminology and Criminal Justice 405; O’Mahony (n 89) 91; K Richards, ‘Blurred Lines: Reconsidering the Concept of “Diversion”: in Youth Justice Systems in Australia’ (2014) 14(2) Youth Justice 122.
[90] J Shapland et al, ‘Restorative justice at the level of the police in England: implementing change’ (Occasional Paper 8, Centre for Criminological Research, University of Sheffield, November 2017).
[91] Winterdyk et al (n 77) 111.
[92] DB Wilson, I Brennan and A Olaghere, ‘Police-initiated diversion for youth to prevent future delinquent behavior: A systematic review’ (2018) 14(1) Campbell Systematic Reviews 1, 28.
[93] Wilson and Hoge (n 88) 507, 511.
[94] Ibid 509.
[95] Ibid 507.
[96] K Tyrrell et al, ‘Diversion, Prevention and Youth Justice: a model of integrated decision making - An evaluation of the Suffolk Youth Offending Service Diversion Programme’ (Report, University of Suffolk, December 2017) 29; LK Augimeri et al, ‘The SNAP Under 12 Outreach Project: Effects of a Community Based Program for Children with Conduct Problems’ (2007) 16 Journal of Child and Family Studies 799, 800.
[97] Augimeri et al (n 97) 800.
[98] Petrosino, Turpin-Petrosino and Guckenburg (n 63); Wilson, Brennan and Olaghere (n 93) 31.
[99] Walsh and Fitzgerald (n 50).
[100] Queensland Government, Department of Justice and Attorney-General, Government Response to the Independent Review of Youth Detention (Youth Justice Strategy, 26 April 2017) 2; Smith (n 86) 12; B Byrne and S Case, ‘Towards a Positive Youth Justice’ (2016) 15(2) Safer Communities 69, 72.
[101] Vidal et al (n 47); Augimeri et al (n 97), 801; Haines et al (n 86) 184; Tyrrell et al (n 97) 7.
[102] S Campbell, A Review of Anti-Social Behaviour Orders (Home Office Research Study 236, January 2002).
[103] S Lewis, A Crawford and P Traynor, ‘Nipping Crime in the Bud? The Use of Antisocial Behaviour Interventions with Young People in England and Wales’ (2017) 57(5) British Journal of Criminology 1230, 1230-1231.
[104] Ibid 1238.
[105] Campbell (n 103) 86.
[106] Lewis, Crawford and Traynor (n 104) 1244.
[107] MR Nadel et al, ‘Civil Citation: Diversion or Net Widening?’ (2018) 55(2) Journal of Research in Crime and Delinquency 278, 284.
[108] Ibid 286.
[109] Ibid 296-300.
[110] T Goddard, R Myers and K Robinson ‘Potential Partnerships: Progressive Criminology, Grassroots Organisations and Social Justice’ (2015) 4(4) International Journal for Crime, Justice and Social Democracy 76.
[111] S Hemphill et al, ‘Are rates of school suspension higher in socially disadvantaged neighbourhoods? An Australian study’ (2010) 21(1) Health Promotion Journal of Australia 12, 16.
[112] KC Monahan et al, ‘From the School Yard to the Squad Car: School Discipline, Truancy, and Arrest’ (2014) 43(7) Journal of Youth and Adolescence 1110, 1118-1119; P Hemez, JJ Brent and TJ Mowen, ‘Exploring the school-to-prison pipeline: How school suspensions influence incarceration during young adulthood’ (2020) 18(3) Youth Violence and Juvenile Justice 235, 248; T Marchbanks et al, ‘School strictness and disproportionate minority contact: Investigating racial and ethnic disparities with the ‘‘school-to-prison pipeline’’’ (2018) 16(2) Youth Violence and Juvenile Justice 241, 243.
[113] NES Goldstein et al, ‘Dismantling the school to prison pipeline: The Philadelphia police school diversion program’ (2019) 101 Children and Youth Services Review 61, 61-63.
[114] CA Mallett, ‘The School-to-Prison Pipeline: A Critical Review of the Punitive Paradigm Shift’ (2016) 33(1) Child & Adolescent Social Work Journal 15, 19-20; M Schiff ‘Can restorative justice disrupt the “school-to-prison pipeline?’” (2018) 21(2) Contemporary Justice Review 121, 123-124.
[115] Goldstein et al (n 114) 62.
[116] T Hill and Y Casiano, ‘Issue Brief 57: From Suspension to Support in the Early Grades’ (Brief, Child Health and Development Institute of Connecticut, 18 September 2017) <https://www.chdi.org/index.php/publications/issue-briefs/issue-brief-57-suspension-support-early-grades>.
[117] Queensland Government, Department of Justice and Attorney-General (n 101) 11.
[118] Ibid; CA Fortune, ‘The Good Lives Model: A strength-based approach for youth offenders’ (2018) 38 Aggression and Violent Behaviour 21; T Ward and CA Fortune, ‘The Good Lives Model: Aligning Risk Reduction with Promoting Offenders’ Personal Goals’ (2013) 5(2) European Journal of Probation 29.
[119] ‘School-Based Diversion: Strategic Innovations from the Mental Health/Juvenile Justice Action Network’ (Brief, National Center for Mental Health/Juvenile Justice, September 2012) 3-4 <https://ncyoj.policyresearchinc.org/img/resources/School-based_Diversion_Strategic_Innovations-563790.pdf>.
[120] ‘Wraparound Milwaukee System of Care Year End Report’ (Report, Wraparound Milwaukee, 2018) 12 <http://wraparoundmke.com/wp-content/uploads/2013/09/WCCF-2018-Wraparound-LO18-1.pdf> ‘Development of a School-Based Diversion System in Connecticut’ (Report, Youth Justice Institute, University of New Haven, 5 January 2018) 10-11 <https://www.cga.ct.gov/app/tfs/20141215_Juvenile%20Justice%20Policy%20and%20Oversight%20Committee/20180118/JJPOC%20School%20Diversion%20Framework%20Final.pdf>; A Kelly, ‘Issue Brief 67: Mobile Crisis Intervention Services Plays Important Role in State's Behavioral Health System for Children: Highlights from the SFY 2018 Annual Report’ (Brief, Child Health and Development Institute of Connecticut, 21 March 2019) <https://www.chdi.org/index.php/publications/issue-briefs/issue-brief-67-mobile-crisis-intervention-services-plays-important-role-states-behavioral-health-system-children>.
[121] Youth Justice Institute (n 121) 10-11.
[122] B Kamradt and P Goldfarb, ‘Demonstrating Effectiveness of the Wraparound Model with Juvenile Justice Youth through Measuring and Achieving Lower Recidivism’ (Brief, The Technical Assistance Network for Children's Behavioral Health, July 2015) 3 <https://nwi.pdx.edu/pdf/Wraparound-model-with-jj.pdf>; Youth Justice Institute, above n114>; JA Tallon, M Labriola and J Spadafore, ‘Creating Off-Ramps: A National Review of Police-Led Diversion Programs’ (Project Report, Center for Court Innovation, September 2016) 54 <https://www.courtinnovation.org/publications/creating-ramps-national-review-police-led-diversion-programs>.
[123] ‘Development of a School-Based Diversion System’ (n 121) 10; ‘School-Based Diversion: Strategic Innovations’ (n 120).
[124] Goldstein et al (n 114) 63.
[125] A Kupchik et al, ‘Police ambassadors: Student-police interactions in school and legal socialization’ (2020) 54(2) Law & Society Review 391, 392.
[126] A Kupchik and KA Farina, ‘Imitating authority: Students’ perceptions of school punishment and security, and bullying victimization’ (2016) 14(2) Youth Violence and Juvenile Justice 147, 148.
[127] Goldstein et al (n 114) 67; Tallon, Labriola and Spadafore (n 123).
[128] Tallon, Labriola and Spadafore (n 123).
[129] JM Kretschmar et al, ‘Examining the impact of a juvenile justice diversion program for youth with behavioral health concerns on early adulthood recidivism’ (2018) 91 Children and Youth Services Review 168, 174; J Latimer, ‘A meta-analytic examination of youth delinquency, family treatment, and recidivism’ (2001) 43(2) Canadian Journal of Criminology 237.
[130] A Dopp et al, ‘Family-based treatments for serious juvenile offenders: A multilevel meta-analysis’ (2017) 85(4) Journal of Consulting and Clinical Psychology 335; CS Schwalbe et al, ‘A meta-analysis of experimental studies of diversion programs for juvenile offenders’ (2012) 32(1) Clinical Psychology Review 26, 30.
[131] Ryon, Early and Kosloski (n 70) 61; Scottish Government (n 44) 29; MS Robbins et al, ‘Evolution of Functional Family Therapy as an Evidence-Based Practice for Adolescents with Disruptive Behavior Problems’ (2016) 55(3) Family Process 543, 547; Kretschmar et al (n 130) 169.
[132] Walsh and Fitzgerald (n 50). See also J Burke et al, ‘The Challenge and Opportunity of Parental Involvement in Juvenile Justice Services’ (2014) 39 Children and Youth Services Review 39.
[133] Walsh (n 34).
[134] Ryon, Early and Kosloski (n 70) 61; Marien (n 2) 12; D Balsamo and Y Poncin, ‘Community-Based Alternatives to Incarceration and Assessment and Community-Based Planning for Probation/Community-Based Alternative’ (2016) 25(1) Child and Adolescent Psychiatric Clinics of North America 123.
[135] Just Reinvest NSW, ‘Justice Reinvestment in Bourke’ (Web Page, 2020) <http://www.justreinvest.org.au/justice-reinvestment-in-bourke/> .
[136] Yiriman Project, ‘Yiriman Story’ (Web Page, 2020) <http://www.yiriman.org.au/> .
[137] Australian Government Productivity Commission, ‘Overcoming Indigenous Disadvantage: Key Indicators 2014’ (Web Page, 19 November 2019) <https://www.pc.gov.au/research/ongoing/overcoming-indigenous-disadvantage/2014>.
[138] Wirrpanda Foundation, ‘Deadly Sista Girlz’ (Web Page, 2020) <https://wf.org.au/deadly-sista-girlz>.
[139] Amnesty International, ‘Community is Everything: Eugene’s Story’ (Web Page, 5 January 2016) <https://www.amnesty.org.au/community-is-everything-eugene-eades/>.
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