indefinite detention of unconvicted people with disability, including children
with disability. 44
A small proportion of children under youth justice supervision end up in youth
detention. Younger children, including those as young as ten years, are
sometimes detained in youth justice facilities.
While most states and territories do not place children in adult detention
facilities, each jurisdiction has legislation that allows children to be detained in
adult facilities in certain circumstances.45 Article 37(c) of the CRC requires
authorities to separate children from adults in detention. The Australian
Government still has a reservation to this article.
Despite legislation in most states and territories that prohibits the use of
isolation and limits the use of force to certain circumstances, allegations of
mistreatment of children in youth detention have arisen in several jurisdictions
over recent years.46
The availability of appropriate diversionary programs is essential to reducing the
numbers of children in youth detention. While diversion from the criminal justice
system is a key principle of all youth justice systems in Australia, it appears to be
underutilised for a variety of reasons.
Onerous bail laws play a role in the disproportionately high, and increasing,
numbers of children on remand in youth detention.
Although most states and territories do not have mandatory minimum
sentences for juveniles, in the Northern Territory and Western Australia these
still exist.47
The minimum age of criminal responsibility in Australia is ten years, which is low
compared with many other countries.48 The Committee on the Rights of the
Child has recently recommended all countries increase the minimum age of
criminal responsibility to at least 14 years.49
Although protecting the Australian community from terrorism is an important
priority for the Australian Government, national security measures should not
undermine the rights of children convicted of terrorism offences to special
consideration as children under the law. A number of national security measures
limit children’s rights disproportionately.
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