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Northern Territory youth detention system- the way forward

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By Divya Sharma, Lawyer, MST Lawyers

Aboriginal and Torres Strait Islander children are 26 times more likely to be incarcerated than non-Indigenous children and an astounding 97 per cent of children in detention in the Northern Territory (NT) represent this category. The figures suggest a substantive change in public policy is required to address this injustice. The question is, how can this be achieved?

The Royal Commission into the NT juvenile detention system is a welcome step towards greater transparency, however, this is a step we have already taken – 25 years ago. In 1991, the Royal Commission into Aboriginal Deaths in Custody made 339 recommendations, largely tackling the underlying reasons why young people come into conflict with the law in the first place. Two further reports were prepared into the NT detention system last year with no substantive subsequent action taken. Therefore, implementation of the previous recommendations and advice is likely to be an important first step in restoring public trust and confidence in the process.

Second, the criminal justice system may not be a solution to this socio-economic issue. Thus, the focus should be shifted to earlier intervention in the lives of Indigenous children to address the root causes that drive them into detention. This follows the need to review the current minimum criminal responsibility age in light of international standards.

Third, to ensure that detention is only ever used as a last resort for children, this should be clearly legislated upon.

This suggests that consideration should also be given to amending the mandatory sentencing laws and the establishment of youth specific courts in Australia.

Fourth, the children at Don Dale Detention Centre and other children who have experienced cruel, inhuman or degrading punishment deserve access to justice and a chance to heal. Therefore, psychological support and counselling should be made available for as long as it is needed to recover.

Fifth, this may be the right time for Australia to reconsider ratifying the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), allowing oversight and monitoring by the UN. The reasons why Australia should ratify OPCAT are contained in UNICEF Australia’s submission to the NCC and AHRC.

This article was first published in the Law Institute Journal October 2016 Edition, p.66