Locking up kids isn't tough. It just creates more adult criminals
Opinion piece by Law Council of Australia President, Juliana Warner, first published in The Canberra Times, 10 May 2025.
Jurisdictions around the country are proving how tough they are by locking up children. In at least one state, a 10-year-old convicted of a serious crime could now face life in prison.
I can’t accept that as a society we have reached a point where we don’t believe we even need to make an effort to rehabilitate a child and help them reach their full potential.
Worse, that we are failing to grapple with our responsibility to step in early and protect children who we can identify as facing the risk factors that make them more susceptible to committing a crime.
Evidence shows that youth crime is linked to trauma and disadvantage – poverty, poor health, lower education and higher support needs. Many children involved are themselves victims of crime and neglect. First Nations children, children from low-income families, children in out of home care and children with disability are disproportionately affected by punitive responses.
That is not to say children should be able to run amok or face no consequences. Children can and do engage in behaviour that can have significant and harmful effects on their victims.
But they are children, not adults, they don’t have adult brain development. It is inappropriate to apply a criminal justice approach, designed for adults, to deal with children who have allegedly breached the law.
It is a universally accepted principle that the detention of a child shall be only as a measure of last resort and for the shortest appropriate period of time.
Let’s take bail as an example. There are criminal justice policies across the nation that are leading, or may lead, to outcomes that are inconsistent with international human rights obligations that Australia signed up to. These policies include an increased removal of the presumption against bail for arrested children.
What this means is that bail is more likely to be declined, and a child will be detained while they wait for trial.
This increases the risk of an innocent child spending a significant time in detention or under supervision and experiencing the trauma associated with that. Remand centres and detention centres will become overcrowded, leading to tensions, poor conditions and potentially violence.
Australia already has a shameful track record of detaining children without them being found guilty of a crime. New data from the Australian Institute of Health and Welfare shows that in 2023-24, four in five, or 80 per cent, of young people in detention on an average day were actually unsentenced – that is their participation in a crime had not yet been proven in a court of law.
Treating children who break the law in the same way we treat adults does not make our community safer – it simply turns children into adult criminals. The detention and institutionalisation of children in their formative years is a proven key factor in recidivism rates.
Surely, we are advanced enough to do better. To find a better solution than simply hiding these children away and washing our hands of the problem.
The National Children’s Commissioner has identified the need for a nationally coordinated approach to child justice and this is strongly supported by the Law Council of Australia.
Of course, state and territory governments have the power to determine the settings for criminal justice in their respective jurisdictions. However, the protection of Australia’s children—including our most vulnerable children—should be a national concern.
Nationally coordinated approaches have been adopted on violence against women and children, anti-terrorism measures, housing crises and other social ills of national concern. There is no reason in principle why child justice reform should not be similarly prioritised, recognising that many of the solutions lie outside of the justice system itself.
A nationally coordinated response – which aligns with human rights and rule of law standards - is more likely to recognise that children engaging in antisocial behaviours is not only a ‘criminal justice’ issue for each jurisdiction, but one where better outcomes will be achieved through coordinated reform of health, education, housing, social services, family, disability support, child protection and criminal justice systems.
How we treat our children is a reflection of who we are as a nation, the values we hold dear and the future we want for ourselves. At the moment, the picture in the mirror is not one to be proud of.
Last Updated on 27/05/2025