Limits of incarceration for children

Earlier this month, in response to a disturbing rise in youth crime in Melbourne, Victoria’s Labor government adopted a key policy that the LNP took to last year’s Queensland state election.

The LNP policy pledged (among other things): to apply adult penalties to children under 18 who committed a range of violent and non-violent offences; to impose mandatory minimum sentences for certain offences committed by children; to abandon the principle that detention should only be used as a last resort when it comes to children; to require judges to give greatest consideration to the effect an offence has on victims when sentencing children

The policy was undeniably popular with Queenslanders. In the human rights statement accompanying the Making Queensland Safer Act 2024, the newly elected government acknowledged that the amendments would “lead to sentences for children that are more punitive than necessary to achieve community safety”, and that mandatory sentencing is “in direct conflict with international law standards”. Even so, the government insisted:

“these measures and the purposes to which they are directed are clearly supported by Queenslanders and are a direct response to growing community concern and outrage over crimes perpetrated by young offenders. For this reason, the amendments include an override declaration which provides that they have effect despite being incompatible with human rights …”

Human rights concerns notwithstanding, and despite the efficacy of such punitive measures now being questioned, Victorian premier Jacinta Allan has proposed a similar suite of legal reforms — which would see: children as young as 14 being tried and sentenced in the County Court; a significant increase in the maximum jail sentences; a requirement that judges “clearly prioritise community safety in sentencing decisions”; the formation of a new Violence Reduction Unit.

Like in Queensland, these proposed youth justice reforms are aimed at addressing community concerns and acknowledging the consequences of violent crime on victims. Both goals are not only worthy, but are integral components of any well-functioning justice system. Punishment must deter wrong-doers and provide some succour to victims; it must denounce wrong-doing and protect the community — but the emotions that drive any pursuit of retributive justice (anger, fear, contempt, the desire for revenge) must be tempered by a more “forward looking” commitment to prevention and rehabilitation.

Victoria’s proposed youth justice reforms thus compels us to grapple with: the limits of punitive responses to crime; what we believe prison/detention to be for; to what extent society’s desire for punishment needs to be tempered by other responses that might decrease the likelihood of re-offence; how much discretion should be afforded to judges when sentencing; whether an emphasis on rehabilitation and early intervention can be reconciled with the anger society feels at crimes that tear at the social fabric.

You can read responses by Kate Fitz-Gibbon and Abraham Kuol to Victoria’s proposed youth justice reforms.