Getting serious about children's rights

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Australia continues to be a menacing place for children who find themselves entwined with law enforcement. The most recent revelations in this regard are that 122 strip searches of girls have been conducted by NSW police during the past three years of children with ten per cent of them being Indigenous, including a ten year old.

Chris Johnston cartoon contrasting a society that cares for it's children, to one that imprisons it's kids, and neglects the environment.Strip searches of children are permissible by law in NSW although a parent or guardian should be present, yet there are exercisable exceptions. The response from NSW Police Minister David Elliott to the statistics was less than reassuring, when he stated that he would want officers to strip search his children if the police felt they were at risk of doing something wrong.

According to a report release by UNSW Law, the laws on this issue in NSW require clarification. Like other jurisdictions in Australia, decisions to conduct such searches 'rely heavily on police discretion and a commitment to comply with statutory restrictions'. With regard to children, the report recommends that they 'must not be strip searched unless on genuine child protection grounds' and that authorisation from the court must be obtained before the search is completed.

Questions around such conduct is inextricably linked to the minimum age of criminal responsibility in Australia, which is ten. An average of 980 children were held in juvenile detention centres across the country on any given night in 2018, with Indigenous young people aged ten to 17 26 times more likely to be detained than non-Indigenous and largely for very minor offences.

In the ten to 13 age group, 70 per cent of those held in any given year are Indigenous. According to a pediatritian and adolescent physician who spoke to the Saturday Paper, 'The prefrontal cortex, the bit of the brain that controls executive functions, is not fully developed until much later, age 25.' The detrimental effects on development and the high likelihood of reoffending have been well documented.

In September, Dujuan Hoosan, a 12 year old Arrernte/Garrwa boy from central Australia and star of the documentary In My Blood it Runs, addressed the 42nd Session of the UN Human Rights Council advocating for increasing the age of criminal responsibility and for Aboriginal-led education. Within days of his appearance, the UN Committee on the Rights of the Child completed a review of Australia's compliance with the Convention on the Rights of the Child, which takes place every seven years.

Clarence Nelson, Committee Co-Rapporteur for Australia expressed his concern that issues previously raised including increasing the age of criminal responsibility had not been addressed and in the most recent report, the recommendation was again put forward that the age should be increased to 14.

 

"An increase in the age of criminal responsibility and providing greater protections to children when facing law enforcement would be positive steps to show Australia is serious about children's rights."

 

Other issues raised included implementing the 2018 recommendations of the Australian Law Reform Commission to reduce the high rate of Indigenous incarceration and actively promote alternative measures such as diversion, mediation and counselling for children accused of criminal offences as well as non-custodial sentences where possible.

'At ten you are too young to vote, drive, or have a Facebook account, but children as young as ten are locked up, some before trial. Let's join the international average & raise criminal responsibility to 14.'

This was a tweet from Central Alliance MP Rebekha Sharkie on 14 October, who tabled a bill about the same in response to the United Nations recommendations. Her bill received initial support from minority parties but not from the major parties, demonstrating reluctance to spare children from the bipartisan 'tough on crime' agenda. According to Mike Seccombe from the Saturday Paper, the Council of Attorneys-General will discuss a working paper it commissioned at its last meeting one year ago considering this very point. The meeting is scheduled for 29 November of this year.

The need to be seen as 'tough on crime' plagues both major parties and precludes nuances within the criminal justice sphere including the protection of the rights of the child. Scott Morrison stated that we need to 'let kids be kids' in condoning the School Strike 4 Climate Justice. The Committee on the Rights of the Child included climate change as one the urgent areas for action and recommended that Australia ensures children's views are taken into account in developing policy and programs to address climate change and that it should phase out coal and accelerate the transition to renewable energy.

An increase in the age of criminal responsibility, implementation of diversion programs and providing greater protections to children when facing law enforcement would be positive steps to show Australia is serious about children's rights. There is ample evidence to support such changes; what is lacking is political will. Increasing the age requires a shift in public sentiment in the first instance, toward a recognition of the negative impacts in criminalising children at such a young age along with the need to offer them support, not incarceration.

 

 

Bree Alexander's words have appeared with Enchanting Verses, Westerly Magazine and Australian Multilingual Writing Project. Under pseudonym Lika Posamari, she was shortlisted for the Overland Fair Australia Prize 2018 (NTEU category) and published a poetry chapbook The Eye as it Inhales Onions.

Topic tags: Bree Alexander, criminal responsibility, youth justice

 

 

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Existing comments

It is true that the prefrontal cortex is not fully developed in children and to "let kids be kids" means that they will get up to nonsense. Being naughty is a characteristic of childhood, tank goodness. The child needs guidance in behavioural norms by an adult in whom the cortex is hopefully fully developed. Children's naughtiness that breaches the law is not helped by arrest or policing but by responsible parenting. Unfortunately, some children are not blessed with responsible parenting and others are reared in an environment where adults engage in "naughtiness". Perhaps the law might achieve more by policing the parents rather than the fruits of parental failure, their naughty children.
john frawley | 25 November 2019


What evidence? [last paragraph] And what do you propose to reduce crime committed by (mostly) indigenous offenders? Criticism is not enough - come up with a plan, and explain how it will be implemented and by whom.
John Wheelahan | 25 November 2019


I refer to the paragraph which adresses indigenous youth incarceration, prefrontal cortex development and detrimental effect of (incarceration) on development. I'm unsure if the author has lumped together 3 unrelated statements/statistics or has suggested there is a correlation between prefrontal cortex development and incarceration, and if so, why... Children's Rights are a vexed issue, particularly when addressing what is beneficial for all while needing to focus on the very small percentage who fall foul of the law. It appears the author would deplore recidivism but please be mindful that it remains the child's choice; if the law does not arrest children for drug, violence and personal harm offences what other current mechanism can protect them from their own poor choices? I'd suggest that there's more liklihood of child brain developmental damage from chroming, alcohol consumption and petrol sniffing remaining unchecked than a brief incarceration accompanied by observation of lawful child support services.
Ray | 25 November 2019


The only constant in these children’s lives is school. And yet the actual school day hasn’t changed since the early colonies. A great educator to the ACT was a man named Headly Beare & one of his dreams was to have school days in 2 sessions ( Early & late) rotating students & teachers on different schedules as well as maximising the use of multi million dollar buildings. Let’s look at new ideas for the children so that they feel valued & can contribute to society.
Sue Swift | 25 November 2019


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