Youth injustice

Does our justice system cause young people to offend?
The evidence suggests so.

Lady Justice statue; a sword in one hand, scales in the other hand, and blindfolded.

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They're alone, afraid and disadvantaged. Children can receive criminal sanctions after committing crimes of necessity – including fare evasion – just to survive.

If their offending persists or escalates, these children can then end up in youth detention facilities across Australia. 

Inside, they are given a bed, food and safety.

For some, these basic comforts make their incarceration far more appealing than life in the sometimes disadvantaged homes they were fleeing when police arrested them.

In her work as a lawyer, University of Queensland's TC Beirne School of Law Professor Tamara Walsh, has witnessed police charge a young client for fare evasion on their way to court.

With no money to their name, she says children may be wrongly punished for being disadvantaged by a system that is creating a youth justice problem instead of fixing it.

“These kids don’t have enough money to get to court,” Professor Walsh tells Research News.

“I just think, ‘are we really going to miss that $3?’

“I question why children are being made to pay for fares in the first place.”

It creates a vicious and dangerous cycle for these children, Professor Walsh says.

Some of those who appear before the court are removed from their homes and placed into youth detention.

It’s a prison-like environment full of disadvantaged youths who have had their development as humans disrupted.

Professor Walsh decided to conduct a study examining the nature and effectiveness of legal responses to the association between child protection and youth justice involvement.

She interviewed youth workers, social workers and lawyers about their experiences dealing with young offenders.

Professor Walsh notes there is a high level of overlap between children who are placed in youth detention and children who are placed in residential care facilities in the community.

Unsurprisingly, many participants said that children in residential care act out as a means of processing their grief and anger.

“You have a young person that is traumatised and they act out, and they might punch a wall," one participant of the study says.

"The walls are plasterboard and they put a hole in the wall and they are charged with wilful damage."

In another instance, a participant tells of how a girl smashed a window and then used the broken glass to self-harm.

She too was charged with wilful damage after an ambulance was called.

Razor wire surrounding a prison

In the United Kingdom, it is legislated that children in state care “should not be charged with offences resulting from behaviour within a children’s home that would not similarly lead to police involvement if it occurred in a family home.”

There is no such policy or law in Australia.

There have long been discussions in Australia about lifting the age of criminal responsibility from 10 to 14.

Evidence suggests that criminal justice may not be the most effective way to correct a child's behaviour under the age of 14, and it does not prevent reoffending.

Professor Walsh believes the police also have their role to play in protecting at-risk youths.

“I think we have to increase our tolerance of these behaviours that are inherently child-like,” she says.

“There’s a few ways we can do that, and one is not charging them in the first place and police exercising their discretion not to charge.

“The other is increasing the age of criminal responsibility so that we are forced to take a welfare approach rather than a punitive approach.”

Professor Tamara Walsh speaks in 2019 about children's rights to education.

Professor Walsh says it may also be a case of not enough training for youth workers, who are supervising children in residential care homes.

These people appear ill-equipped to deal with outbursts of rage, or suicide attempts, she says.

Because of this, the industry has a high turnover rate and these workers are more likely to call police as they are unsure of how to deescalate situations themselves.

This ultimately leads to more charges being laid against young people and causes some of them to become alienated from the justice system, Professor Walsh says.

“Appearing before a court isn’t relevant for them,” she says.

“It feels unjust to them, and they’re right – it’s not fair that they would be punished for not having any money, or being unable to deal with the trauma they have experienced.

“They sense that injustice and it makes them not respect the system.

“Then when the system does intervene, it doesn’t intervene to support or help them."

Images: iStock/Fotolia/Unsplash

Child leaning against a window

Professor Tamara Walsh

Professor Tamara Walsh has degrees in both law and social work, and her interest is in social welfare law. Her research studies examine the impact of the law on vulnerable people including children and young people, people experiencing homelessness, people on low incomes, people with disabilities, and mothers and carers.

Contact details

Phone: (07) 3365 6192

Professor Tamara Walsh

Professor Tamara Walsh

Professor Tamara Walsh