According to Article 37 of the United Nations Convention on the Rights of the Child (CROC) ͚ƚŚĞĂƌƌĞƐƚ͕ĚĞƚĞŶƚŝŽŶŽƌŝŵƉƌŝƐŽŶŵĞŶƚŽĨĂĐhild (aged up to 18 years) must be in conformity with the law and used only as a measure of last resort and the shortest appropriate period of ƚŝŵĞ͛͘dŚĞŐĞŶĞƌĂůƉƌŝŶĐŝƉůĞƐƵŶĚĞƌůLJŝŶŐƚŚĞYouth Justice Act 1997 (Tas) mirror this aim, by ƉƌŽǀŝĚŝŶŐƚŚĂƚ͚detaining a youth in custody should only be used as a last resort and should ŽŶůLJďĞĨŽƌĂƐƐŚŽƌƚĂƚŝŵĞĂƐŝƐŶĞĐĞƐƐĂƌLJ͛.154
The United Nations Committee on the Rights of the Child in its General Comment on ĐŚŝůĚƌĞŶ͛ƐƌŝŐŚƚƐŝŶũƵǀĞŶŝůĞũƵƐƚŝĐĞƐĂLJƐ:155
In all decisions taken within the context of the administration of juvenile justice, the best interest of the child should be a primary consideration. Children differ from adults in their physical and psychological development and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and require a different treatment for children. The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety.
Although there is no doubt that detention is required for some offenders and offences, there is a clear and overwhelming consensus in the international and Australian literature and research about youth offending that incarceration ʹ or detention ʹ does not work.
On the one hand, detention in and of itself is criminogenic ʹ that is, it fosters further criminality.
As Richards explains:156
/ƚ ŝƐ ĂĐĐĞƉƚĞĚ͕ ĨŽƌ ĞdžĂŵƉůĞ͕ ƚŚĂƚ ƉƌŝƐŽŶƐĂƌĞ͚ƵŶŝǀĞƌƐŝƚŝĞƐ ŽĨĐƌŝŵĞ͛ ƚŚĂƚĞŶĂďůĞŽĨĨĞŶĚĞƌƐ ƚŽ learn more and better offending strategies and skills, and to create and maintain criminal networks. This may be particularly the case for juveniles, who, due to their immaturity, are especially susceptible to being influenced by their peers. As Gatti, Tremblay and Vitaro (2009: ϵϵϭͿ ĂƌŐƵĞ͕ ƉĞĞƌ ŝŶĨůƵĞŶĐĞ ƉůĂLJƐ Ă ĨƵŶĚĂŵĞŶƚĂů ƌŽůĞ ŝŶ ŽƌŝĞŶƚŝŶŐ ũƵǀĞŶŝůĞƐ͛ ďĞŚĂǀŝŽƵƌ ĂŶĚ ͚ĚĞǀŝĂŶƚďĞŚĂǀŝŽƌŝƐŶŽĞdžĐĞƉƚŝŽŶ͛͘^ĞƉĂƌĂƚĞũƵǀĞŶŝůĞĂŶĚĂĚƵůƚĐƌŝŵŝŶĂůũƵƐƚŝĐĞƐLJƐƚĞŵƐǁĞƌĞ established, in part, because of the need to prevent juveniles being influenced by adult offenders ͙.
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KŶ ƚŚĞ ŽƚŚĞƌ ŚĂŶĚ͕ ͚ƉƵŶŝƐŚŵĞŶƚ ĂŶĚ ĚĞƚĞƌƌĞŶĐĞ ĚŽ ŶŽƚ ĂĚĚƌĞƐƐ ĨĂĐƚŽƌƐ ƚŚĂƚ ƉƵƚ LJŽƵŶŐ people at risk of offending, or teach them new skills to succeed in conventionĂů ůŝĨĞ͛157
thereby contributing to poorer long term outcomes for the individual concerned and for the community as a whole.
According to the ACT Human Rights Commission in its 2011 Report on Bimberi Youth Justice Centre:
Spending time in custody has a proven negative effect on young people. Research has shown incarceration leads to social isolation and disconnection, institutionalism increases the likelihood of reoffending. More specifically, recidivism is correlated highly with future juvenile offending, and adult offending. The most significant reasons for this were found to be: stigmatization of young people, formation of criminal associations and networks, placing vulnerable young people at risk, and reduction of opportunities for positive rehabilitation. Remand has been shown to have negative impacts on a LJŽƵŶŐƉĞƌƐŽŶ͛ƐĨĂŵŝůLJ͕ƌĞůĂƚŝŽŶƐŚŝƉƐ͕ education and work. Remanding a young person in custody also comes at significant economic costs to the community.158
This is particularly the case if it is acknowledged that the common demographic and behavioural characteristics (so-‐ĐĂůůĞĚ ͚ƌŝƐŬ ĨĂĐƚŽƌƐ͛Ϳ ĂƐƐŽĐŝĂƚĞĚ ǁŝƚŚ ĐŚŝůĚƌĞŶ ĂŶĚ LJŽƵŶŐ people, who commit offences AND end up in detention include:
x ĨĂŵŝůLJ͚ĚLJƐĨƵŶĐƚŝŽŶ͛ĂŶĚĨĂŵŝůLJǀŝŽůĞŶĐĞ x socio-‐economic disadvantage
x parental criminal history
x experience of child abuse and neglect and involvement in out-‐of-‐home care
x a physical, intellectual or learning disability (and which may manifest as an oral language disorder that impacts detrimentally on language, literacy and interpersonal skills159)
x mental health issues (including alcohol and other drug issues) x sporadic or interrupted participation in formal education x periods of homelessness.
Offenders are also overwhelmingly male.
Only two-‐thirds of those who do offend will be proceeded against by the police.
Generally, over two-‐thirds of juveniles offend just once before desisting, and a further 15% desist after committing two offences; most juvenile involvement in crime stops without any need for intervention.
Examples of relevant research and data are described in more detail in Chapter 2 of this report.
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The ACT Human Rights Commission has described the relevance of these so-‐called ͛risk factors͛ as follows:160
A large body of evidence has been developed to understand the risks that can threaten the development of children and young people. Risk factors can be defined as those events, characteristics or conditions that make a negative outcome more likely. Risk factors can be found within (individual attributes) and outside of (environment contexts) the individual. The specific risks that can endanger the development of children and young people may take a variety of forms, including family dysfunction and disempowerment, school and community disorganisation, and exposure to pervasive violence and substance abuse within family, school and community contexts. There is also evidence that the number of risk factors that a person has been exposed to is a predictor of behaviour, whether that is drug use or criminal behaviour, regardless of what the particular risk factors are. The more risk factors there are, the greater the likelihood of a child or young person experiencing negative outcomes, most notably escalated involvement in problem behaviours and experiencing adjustment difficulties in adulthood.
The factors that protect children and young people from being influenced by risks are called protective factors. It has been recognised that these are not merely an absence of risks, but factors that actively influence the effects of risks. Protective factors may work in one or more of four ways: directly decreasing dysfunction; interacting with risk factors to buffer their effects; disrupting the chain by which risk leads to disorder; or preventing the initial occurrence of risk factors.
The concept of resilience is also important and related to the influence of risk. Resilience is often described as the ability to cope with stress or adversity. For example, a resilient young person is one who is able to maintain a normal or high level of functioning when confronted with developmental challenges or time-‐limited stressors. A hallmark of resilience is when a young person achieves high quality developmental outcomes in the presence of ongoing risk.