Locking children up for minor offences

In 1997, Shane Stone was the Chief Minister of the Northern Territory, and he sought to cement his position by a ‘tough on crime’ agenda for young offenders. 

Ho hum – the more things change. His government passed a mandatory sentencing regime for property theft or damage which meant that young offenders must be sentenced to imprisonment.

The then Chief Magistrate, Ian Grey, argued against these laws publicly when they were being debated, sought to work around them in judgments once enacted, and when overruled by the Supreme Court, took the most ethical road, the path with heart, and resigned.

He said, ‘For me, it was untenable to continue in the position given the prospect of locking children up for minor offences’.

This illustrates the importance of having a line in the sand. Working within the system is all very well, but you need limits that you will not cross. I’m not blaming or shaming those who work within – I did for decades – and it is often a tough, lonely road. 

And so to the ALP. I have friends who have hung in there. Good on them. Only disagreeing internally, not crossing the proverbial or literal floor, never criticising the leader publicly, toeing the party line. 

‘Better to be inside the tent seeking change’, they say. Remember Penny Wong having to defend an anti-marriage equality stance? It was sickeningly hypocritical. 

Her line in the sand must have been a long, long way up the beach. 

There are some who cannot stomach it, like Senator Fatima Payman. 

So, ALP friends, where is that line now? Maybe not at decimation of koala forests. Maybe not at new coal and gas. Maybe not at mandatory prison terms for waving a flag even if it is directly against ALP policy.

But what if the state government passed laws that locked up innocent Aboriginal children with bail laws tougher than for adults? What if they trialled them for 12 months, and all that happened was the number of children locked up increased by a third, almost all Aboriginal. And there was no resulting reduction in youth crime. And then, without any party consultation, without any call by the opposition, extended these ‘circuit breaker’ laws by a 2GB special for an additional three years, claiming that it was working because more kids were in custody. 

‘It’s not “mission accomplished” on youth crime, but the bail laws are working, so we’re extending them.’

Thanks Labor Premier Chris Minns – but working exactly how, if the youth crime rate is unaffected?

This is the greatest rate of increase in Aboriginal juvenile incarceration in Australia’s history. 

Child abuse

This is child abuse. This is vote harvesting at the expense of another stolen generation. 

This is deliberate, knowing, systemic racism. Within three more years, there will be hundreds of additional kids on remand. The laws in the Territory were shockingly bad, but not as foul as the regime now in NSW. 

The provisions targeting children here are much worse, because they imprison those who have been charged, not those who have been convicted. This represents a massive shift in power from the courts to the police, because the latter decide who gets charged with what.

And in NSW, as the Supreme Court has pointed out, the effect of these bail laws is that if there are two offenders with identical records, and one turns 18 tomorrow, and one turned 18 yesterday, then the younger one will be refused bail, and the older one released. 

For centuries, now reflected in international human rights, the law has been that children should never be treated more harshly than adults. 

These laws were opposed by the Law Society, the Bar Association, Legal Aid and the Aboriginal Legal Service. The Supreme Court has been damning, but compliant. 

No resignations there, nor from the Local Court or Children’s Court bench. 

The community is no safer – indeed it is at much greater risk in the medium and long term from demonised young people, let alone the damage to our social fabric by making police the effective determiners as to who gets bail. Startlingly, in one country (guess where – the US) there were 75 per cent less children in detention in 2022 than there were in 2000. 

And youth crime reduced by over 30 per cent. There is no evidence that locking up more children reduces youth crime. That’s because the causes are complex, not linear.

Oh, and please do not give me the argument that the other side of politics would be worse. First, that is just an unprincipled race to the bottom. Where does it end? 

Second, I doubt they could be shoddier, but at least there would be an opposition opposing. 

Third, realpolitik suggests they would be unlikely to be able to pass anything tougher through a future upper house. 

Law-and-order shock-jocks drive agenda 

And finally, it is just such dumb politics – a swing to the law-and-order shock-jocks’ agenda did not help the ALP in Queensland, Northern Territory or (soon) Victoria. Better to actually lose power than lose your morals. Hate is an insatiable beast. 

You can’t ‘out hate Rupert’ or racism. I could not belong to a party that passes such laws. I could not remain on a court that was obligated to apply them. So, my ALP friends, where is your line in the sand? If not now, pray tell, when? 

♦ David Heilpern is a former magistrate and is now Dean of Law at SCU.