Part I of this two-part blog series explores the shortcomings of Australia’s juvenile justice system, highlighting its failure to align with international human rights standards by maintaining a minimum age of criminal responsibility (MACR) that is significantly lower than what is globally recommended. It critiqued Australia’s inconsistent application of the doli incapax principle and discusses how indigenous youth are often disproportionately incarcerated within the juvenile justice system. The blog critiqued Australia’s use of detention as a punitive measure rather than focusing on rehabilitiation, by emphasising the use of detention as a last resort–as stipulated by the Convention on the Rights of Child (‘CRC’).

To that end, Part II delves further into Australia’s international obligations and discusses how juvenile rights can be progressively realised by fulfilling certain minimum core obligations as enshrined within the CRC. Subsequently, it explores the apparent conflict that arises between “youth crime crisis” and “child jail crisis”, and resolves the same by recognising the “shared priorities in the implementation” of human rights regarding both crises.

Achievement of Juvenile Rights Through Progressive Realization

According to the ComRC’s guidelines, Article 40 of CRC, which talks about the rights of children in the juvenile justice system, doesn’t fall under “civil rights and freedoms” and hence, can be categorized under economic, social and cultural rights. According to Article 4 of the CRC, States should “undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation” to fulfill the economic, social and cultural rights (ESR) of children. This brings in the concept of “progressive realization” for these rights. It follows that States are expected to move expeditiously towards fulfilling such rights to the maximum amount possible taking into account the availability of resources. The ComRC has cautioned that this in no way indicates the treatment of these rights as a “charitable process, bestowing favors on children”. Further, the progressive realization of the ESR of children should be achieved while keeping in mind the smaller capacity of children to achieve them and their large vulnerability to violations of their ESR in comparison to adults. The starting point for taking such steps can be the immediate fulfillment of the “minimum core obligations” which should not depend on the availability of resources.

The Committee on Economic, Social and Cultural Rights (CESCR) has identified certain minimum conditions of economic, social and cultural rights that should be fulfilled and implemented by States at all times on a priority basis. Keeping in mind the special case of children, such minimum core obligations go beyond ensuring adequate food, shelter, health, etc. The immediate core obligations for fulfilling the rights enshrined under Article 40 of the CRC include:

Firstly, Obligation on States to maintain the “minimum essential levels” of each right: Taking into account the standards outlined in the domestic as well as international instruments:

(a) raising the MACR to 14 years, and

(b) maintenance of certain basic principles like using detention as a last resort for the shortest period of time and placing children separate from adults,

should count as the minimum conditions for fulfilling juvenile rights. These two “minimum essentials” contribute to the right to life, survival, and development of the child mentioned under Article 6 which has elements of civil and political rights. If children are allowed to be arrested when they are as young as 10 years old or are detained in miserable conditions it would affect their growth and development by resulting in physical and mental damage.

Secondly, States should take both negative and positive measures to ensure non-discrimination: The ComRC recognizes that Article 2 of CRC which guarantees non-discrimination contains some elements of civil and political rights. It is identified as one of the basic principles of CRC. The ComRC also recognizes that the State should identify the possible factors of discrimination and take positive measures to eliminate discrimination against indigenous children. In lieu of this, the Australian government should create a long-term target of reducing the representation of indigenous children in the justice system and should take effective measures for this after consultation with their community.

Thirdly, States should adhere to non-retrogression: The retrogressive measures like the ones taken by the new government in the NT jurisdiction to reduce the MACR from 12 to 10 years should be avoided once the MACR is raised. Any such steps taken again should be temporary, reasonable and fully justified. In Australia, there is no satisfactory justification to lower the MACR. For instance, people in Victoria have seen that lowering the MACR doesn’t stop the youth from offending and there has been a continuous call for the MACR to change. Further, reducing the MACR cannot be justified in the name of security since the younger the children come in contact with the justice system, the more they are likely to reoffend.

Resolving the Conflict that Puts Doubts on Indivisibility

In implementing the above conditions, there comes an apparent conflict between the “youth crime crisis” and “child jail crisis”. On the one hand, the Australian government has strongly justified the low age of MACR by majorly citing safety concerns for the community in light of the rise in youth crime rates. On the other hand, there is a “normative global prohibition” against the widespread criminalization of children as young as 10 years old in Australia. In the former, a low MACR would be perceived as an infringement of the socio-economic rights of juveniles enshrined under Article 40. If the latter is taken into account and MACR is raised then it would be perceived as infringing the right to security of the citizens of Australia which is a civil and political right under Article 9 of ICCPR. This conflict casts doubt on the “indivisibility” of human rights.

There has been a consensus in the primary UN documents that all human rights are “indivisible, interdependent and interrelated.” One of the earliest documents, The Proclamation of Teheran adopted by the International Conference on Human Rights in 1968 affirmed that all human rights are indivisible and hence, the fulfillment of civil and political rights depends upon the fulfillment of socio-economic rights. Similarly, the establishment of the Human Rights Council in 2006 began with reaffirming that all human rights are “universal, indivisible, interrelated, interdependent and mutually reinforcing”. However, in reality, neither all human rights are treated equally, nor do different States treat each human right equally. There remains a disagreement among States regarding the prioritization of different human rights. This also leads to a situation where even if a State ratifies a convention, it is not enthusiastic to implement it properly. This is also evident in the case of Australia which is being constantly criticized for not respecting the CRC and its basic standards even after ratifying it. Further, since States do not have a consensus on the fundamental values of different human rights, they justify their violations by arguing that complying with the established human rights would be worse for their people. In fact, as mentioned above, two of the reasons cited by Australia for not raising its MACR were that the international standards for MACR would not adhere to the expectations of its modern population and would not suit its unique context.

Many scholars have tried to placate this “divisibility” in human rights and to protect their due implementation. Quintavalla and Heine suggest that one has to recognize the “shared priorities in the implementation” of different human rights. They acknowledge that there is a hierarchy between human rights, not in their substance but in their implementation, because of limited political and economic resources in different States. This means that one human right needs to be implemented before another because firstly, the former is instrumental to the implementation of the latter and secondly, the limited availability of resources would not support implementing both simultaneously. This doesn’t affect the substantive importance of both the human rights (i.e. one human right doesn’t have more value than the other). Keeping such suggestions in mind, it is possible to address the tension between the economic and social rights of a child and the civil and political freedoms regarding the safety of the community in Australia.

Firstly, jailing children doesn’t reduce the wrongs committed by them but instead increases their chances of reoffending. Children as young as 10–11-year-olds neither understand the morally wrong reason behind their actions nor do they have the capacity to effectively engage with the justice system. So, such “punitive” actions against the children do not work in reducing crime.

Secondly, if early interventions are not initiated for children facing trauma or committing wrongs at a young age, it would result in high costs in the future due to the increase in the use of criminal justice system and the implementation of several post-crime remedial services for the juvenile. For instance, due to the failure to introduce early prevention measures, the Northern Territory government suffers the costs of statutory child protection services like surveillance and child removal and placement which generate controversies due to their futile expense of resources. Further, delayed interventions would not only enlarge the future risks for the public by increasing a juvenile’s likeliness to re-offend but would also risk the future of these children by hampering their health and well-being. Hence, it would be wiser to invest in a strong “welfare-based system” for children. For instance, alternative programs handled by the indigenous community focusing on “rehabilitation and reintegration by addressing the root causes of criminal behavior” have been effective in keeping children out of the justice system. Taking into account the consequences of crime and violence flowing from a poor childhood, especially in cases of indigenous children, it is essential to invest in early support interventions for these children to enhance their development and reduce violent behaviour.

Hence, following the concept of “shared priorities in the implementation”, it is prudent to prioritize the fulfillment of the above minimum core conditions. The limited resources available to the Australian governments should be diverted towards keeping kids out of the criminal justice system and providing early support systems in their lives before spending them on detaining 10-years-old children. A child-centric investment of resources would in turn be instrumental to the fulfillment of (and not in conflict with) community security.

Conclusion

While the rights of juveniles and the right to security of others are indivisible in their substance, the Australian government has created a division by prioritizing the enforcement of the latter before the former. However, this sequence of implementation fails both for being ineffective and for violating international standards. As an alternative, this paper proposed framing the initiative to raise MACR and to include early therapeutic support systems for children as being instrumental to decreasing the risks associated with growing rates of youth offending. This would correct the sequence and would encourage Australia to implement the minimum core conditions of international juvenile rights more diligently.

Click here to read part I.

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Debarchita Pradhan is a third-year student currently pursuing BA LLB (Hons.) at the National Law School of India University, Bangalore.

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Picture Credit: Frederic J. Brown