Queensland Law Society

20 years of shame of 17 year olds in prison

Date 23 Nov 2012
Contact Natalie Graeff, Manager Corporate Communication
Phone 07 3842 5868
Mobile 0488 433 884
Fax 07 3220 0616
Email n.graeff@qls.com.au

Yesterday’s story on Hack about 17 year olds in prison highlighted the sorry state of affairs that has hung over the Queensland criminal justice system for 20 years. Stories like the one presented, that of ‘Dave’ – sentenced to a prison in 2001, show the vulnerability of 17 year olds when housed with adult prisoners.

In the radio documentary, Professor Gillian Triggs, President, Australian Human Rights Commission noted that young people, unlike adults, do not have the ability to make mature choices and understand the consequences of their actions.

And that’s an excellent point. 17-year-olds are old enough to know right from wrong, but should they suffer the full (adult) consequences of their actions?

Many 17-year-olds are still in school. It is a time of life when young people are still shaping and defining their identities and settling their moral compasses. They are learning from peers, while experimenting with different friends, behaviours and attitudes. It’s an age where we are vulnerable to others’ expectations and suggestions, not having yet full developed the self-confidence that comes in subsequent years.

Those who wrote the Youth Justice Act 1992 must have had an itchy feeling issues would arise, as the Act contemplates the imminent inclusion of 17-year-olds within the youth justice system. All that is required for the change to be made is for the Governor in Council to fix a date by regulation.

Unfortunately, this has not yet come to pass.

Queensland Law Society has repeatedly called for the state government to issue the regulation. Here are the main reasons given over the past 20 years for why this has not occurred.

  1. At 17, they should know better. We agree that the line has to be drawn somewhere regarding age and responsibility for self. According to all other laws and social conventions, society has decided that 18 is the age when people assume adult responsibilities such as signing legal contracts, getting married/a passport/a tattoo, voting, drinking. So 17-year-olds are considered children across a wide range of legal rights and responsibilities but if convicted of an offence are suddenly an adult. That’s highly questionable logic.
  2. Negative influence of older offenders in youth detention centres. There is a certain irony in the position that 17-year-olds in youth detention centres can negatively influence younger offenders, but it’s fine to mix 17-year-olds, who can be easily influenced, with much older, more experienced offenders who have developed a criminal trade.
  3. Cost. A commonly claimed rationale for why 17-year-olds are not transferred to the youth justice system is the expense – that it would be costly to transfer or set up facilities for them. A conservative estimate of prison costs is $200 prisoner/day. With 35 17-year-olds in adult prisons, the cost per year is $2,776,800. That’s money that could be saved with the cheaper, more effective option of court diversionary programs.

So really, none of these arguments hold much water.

And we’re not alone in our advocacy on this issue. Court of Appeal president Justice Margaret McMurdo AC, Childrens Court of Queensland president Judge Michael Shanahan, the Commission for Children and Young People and Child Guardian, the Australian Children’s Commissioners and Guardians, the Law Council of Australia, the Law Society of South Australia and the ACT Law Society have all expressed concern about this issue.

This is in addition to the United Nations Committee on the Rights of the Child’s repeated references to Australia’s contravention of the Convention of the Rights of the Child, most recently in its mid-2012 Concluding Observations recommending Australia “remove children who are 17 years old from the adult justice system in Queensland”.

To ensure a fair and just outcome for 17-year-olds, Queensland Law Society asks the government to use the Youth Justice Act 1992 regulation that sets the age of a child to under 18.

This will ensure that all 17-year-olds in Queensland can access rights laid out in the Act such as:

  • entitlement to have a support person with them during police interviews
  • diversionary sentencing mechanisms such as access to community-based rehabilitation that address the causes of offending behaviour, with detention being a last resort
  • access to bail support programs that target at-risk youth to prevent re-offending.

Will the situation change?

Before the State election, (now) Attorney-General Jarrod Bleijie said, “The LNP does not support changing the current age of 17 for which offenders can be dealt with through the adult justice system”.

However, we will keep campaigning for reform on this issue. We feel there is a growing groundswell of support for change from various quarters – we can only hope there’s enough momentum to turn the tide.

Criminal Law Committee chair Glen Cranny