Does our justice system cause young people to offend?

16 August 2021

Disadvantaged children can receive criminal sanctions after committing crimes of necessity – including fare evasion – to survive. If their offending persists or escalates, these children can end up in youth detention facilities across Australia.

In her work as a lawyer, 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 said children may be wrongly punished for being disadvantaged by a system that is creating a youth justice problem instead of fixing it.

“I question why children are being made to pay transport fares in the first place,” Professor Walsh said.

“For children who can’t pay, it creates a vicious and dangerous cycle.”

Views of frontline workers and lawyers

Professor Walsh conducted a study in 2019 examining the nature and effectiveness of legal responses to the association between child protection and youth justice involvement.

Drawing on extensive contacts from her work in the community, she interviewed youth workers, social workers and lawyers about their experiences dealing with young offenders.

Professor Walsh is looking at alternatives to criminalising children

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

Unsurprisingly, many participants said that children in residential care may act out because of the trauma they have experienced, or because they have psychological, cognitive or behavioural disabilities.

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

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

Different for children in UK

In the United Kingdom, it’s 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.

However, there have long been discussions about lifting the age of criminal responsibility from 10 to 14 and taking a welfare approach to children’s ‘offending’, rather than a punitive approach.

Evidence suggests that the criminal law does not provide the most effective way to address a child's behaviour under the age of 14, and it does not prevent reoffending.

Alternatives to criminalisation

Professor Walsh’s most recent research with Associate Professor Robin Fitzgerald has focused on alternatives to criminalising children.

Research assistant and fifth-year law student Lucy Cornwell said the paper highlighted the inadequacies of the current system.

“Our research challenges the assumption that traditional criminal processes and penalties are the best or only ways to manage youth who enter the criminal justice system,” Ms Cornwell said.

“We show that other jurisdictions – for instance, in the UK and the US – have used alternatives to criminalisation that have been proven effective.”

Professor Walsh said youth workers in residential care homes may not be trained to deal with outbursts of rage or suicide attempts, resulting in more calls to police and charges laid.

“Appearing before a court feels unjust to these children, and they’re right,” she said.

“It’s not fair that they would be punished for not having any money or being unable to deal with their trauma or manage their disability.

“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."

According to Professor Walsh, the next step is to fill the gaps in the current research around child protection and youth justice.

“We must talk to affected young people directly and hear their feedback,” she said.

“I completed my 2019 study on legal responses to children in the child protection and youth justice systems without funding from government agencies or partners. 

“To extend the research and speak with young people, we would need that extra support.”


Tamara Walsh

Professor Tamara Walsh

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