Victoria is the latest state to address public concern about crime by children, changing its bail laws in ways that will place more children in detention. The debate over how to respond to children who have acted unlawfully is often polarised, with advocates for punishment on one side and proponents of evidence-based responses on the other. It may be helpful to consider more broadly the extent of youth crime, its effects on different groups affected, what respect for each group demands, and the likely impact of new legislation on each.
The latest evidence for the need for the Victorian Government to act is strong. Reported crime has risen sharply in recent years, including in 2024. Criminal behaviour by children has increased disproportionately, particularly among young males aged 14 to 18. The behaviour that has caused most concern to the community has involved stealing cars, driving recklessly, and breaking into homes. Police and government spokespersons believe that these particularly concerning crimes have been committed by a relatively small number of young people, most of whom have offended repeatedly after being bailed. The Government has focused on tightening the rules for bail.
The challenge posed by antisocial behaviour among young people is to respond in a way that respects the humanity of all those affected by it. These include, first, the people who have had their cars stolen and dumped or written off, and have seen their houses broken into. They also include their neighbours and the community at large, especially the elderly, who can be traumatised and made anxious by this behaviour. Their right as human beings to security has been threatened. Any response must aim effectively to restore their confidence.
The second group of people involved are the children who have broken the law. They must be held responsible for their actions in a way that respects their distinctive status as children. They are not adults. Their brain development means they cannot fully weigh the consequences of their actions and are naturally influenced by peer group pressure. To develop into responsible adults who can contribute to society, they need to be able to play, to form positive relationships in family and friendship, and to have good role models. Their growth into responsible adults will be further delayed if their lives have already been traumatic and if they have lived with other forms of disadvantage. The way in which they are held responsible should not be guided by the impulse to punish, but by the desire to help them take responsibility for their actions. The goal should be to build good relationships, not to deprive them of the opportunity to form them. The welfare of children is the business of the whole community — they are its future.
For that reason, to hold young people who have broken the law in places of detention is generally the worst and most counterproductive response. It severs relationships, deprives them of good role models and substitutes bad ones, and makes it more likely they will reoffend and end up in adult prisons. Generally speaking, to enter the justice system instead of a child welfare system is traumatic for children and an obstacle to a law-abiding life. In dealing with serious, serial offenders, some restriction of liberty may be justifiable, but it should be in an environment that encourages change, not punishment.
The third group of people involved in the situation are the police, who face danger and violence in apprehending perpetrators. That can be traumatic. They have a right to expect that the community does not encourage contempt for the law, nor put people, including themselves, at risk from young people who offend seriously and repeatedly.
The fourth group are those who work with disadvantaged young people and with those who have broken the law. For their work, they need support from the community in providing an environment conducive to building relationships that encourage growth and responsibility. They include officers in juvenile detention centres whose responsibilities are conflicting: to keep children locked up and maintain public order, and also to help them grow into taking responsibility as mature adults. To do the latter, they need special training, adequate financial and other support, and a conducive environment. Throughout Australia, the combined pressures of total security demands and inadequate financial support lead to difficulties in finding, training and retaining properly equipped staff, to emotionally sterile environments, prolonged lockdowns, and adversarial relationships between staff and children. Juvenile detention centres can easily become places of despair and preparatory schools for adult jails.
'To hold young people who have broken the law in places of detention is generally the worst and most counterproductive response. It severs relationships, deprives them of good role models and substitutes bad ones, and makes it more likely they will reoffend and end up in adult prisons.'
Another group comprises journalists, including those in populist newssheets and influencers on social media. Some are intelligent and responsible in representing the complexity of the situation. Others give a megaphone to fear, prejudice and simplistic demands to lock children up and throw away the key. These are like children playing with fire on a hot day.
The final group of people are the politicians, who must make decisions that respect the humanity of all the persons involved and embody this respect in good law, regulations and funding of services. Their care for the common good entails respect for the good of all persons and for society as a whole.
That is the ideal. When a tired or unpopular government goes to the polls, however, opposition politicians often exaggerate the extent of crime and recommend harsh measures. Governments then try to ‘neutralise’ the issue by acting even more punitively towards children, asylum seekers, immigrants, Indigenous Australians and other vulnerable groups. The result is a lack of respect for persons, full and fractious jails, and less finance available for programs that could have benefited the people targeted and the community as a whole, while also lowering costs.
These are the people who should have been respected in the legislation that was brought in. In responding to crime, the Government needs first to reflect on its causes. These are complex. The majority of people who break the law are, for example, multiply disadvantaged. A straitened economy is likely to increase alienation and economic hardship. Domestic violence and abuse, including that committed by children, are also likely to be more frequently reported than in previous years.
The immediate problem to be addressed is the violent, repeated offending by a relatively small group of young people and its effects on victims and the broader community. These offences, and the devastation to victims’ lives and the anxiety within the community, must be dealt with. It is possible that this can only be met by deprivation of freedom. But if so, this should be designed to promote change, not punishment.
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In this respect, the changes enacted by the Government to the Bail Act fail. They are designed not in the interests of children or the community, but to placate critics and avoid political damage. The first change removes the requirement that remanding children in detention be a last resort. This provision is a central pillar of the United Nations Convention on the Rights of the Child, which Australia has ratified. The changes, however, do continue to require other factors to be considered in sentencing and bail decisions. Children in detention are also promised access to rehabilitation programs.
The second and more alarming change is to make community safety the overarching principle for offenders of all ages, thereby trumping other considerations such as the presumption of innocence, the right to liberty, fairness, transparency and consistency.
This change will presumably reduce the incidence of car theft and house burglary by repeat offenders and may help allay public anxiety about security. It may also mean that police officers will face less violence from young offenders. Social media influencers will be satisfied, and politicians can get on with winning elections.
Any benefits of the legislation, however, will come at a heavy cost. If detention is no longer seen as a last resort, and if community safety is the guiding principle, more children will surely be detained for lesser offences, not to mention disadvantaged adults whose actions cause public offence. Their distinctive humanity will be treated with disrespect. The already excessive time between remand and hearing will likely grow longer. And even if diversion and rehabilitation programs are offered in detention, at a time of pressure on government expenditure, they will struggle to compete with the absence of family support, good peer models, play, and autonomy. In coming years we may reap a bitter harvest from the seeds sown in this legislation. It may provide more entrants into adult prisons, more demands on police, and more populist demands for an even more brutal and counterproductive system.
Andrew Hamilton is consulting editor of Eureka Street, and writer at Jesuit Social Services.