This year around 900 children and young people will spend Christmas in jail.
More than 5 per cent of this population are between 10 and 12 years old and 74 per cent of this age group are Indigenous. Most have been charged or convicted with petty crimes, like graffiti, vandalism, shop lifting or fare evasion.
More than half of the children in Australian jails have not been convicted of a crime. They are in jail because the authorities have not found suitable residential alternatives wihle they await a court determination. Many will be released following sentencing, with no time remaining to serve in custody.
Punishment, deterrance and public safety are some of the common arguments used to justify the imprisonment of offenders. But, to be effective, the offender must understand that the punishment is a result of their actions.
Compared to other countries, the age threshold of 10 for treating children as criminally culpable and permitting their incarceration in Australia is low. In New Zealand and Germany, the age of criminal responsibility is 14-years-old - the most common minimum age worldwide. In Canada it is 12-years-old and in Portugal it is 16-years-old.
The United Nations Committee on the Rights of the Child recommends that the absolute minimum age be 12 years of age.
Many studies have shown that children even well into their teens have not yet fully developed the ability to distinguish rights from wrong, make careful judgments, delay gratification, restrain impulsive behaviour, or think through their actions.
Younger children also lack the capacity to properly engage in the criminal justice system, are more likely to accept a plea bargain, give false confessions or fail to keep track of court proceedings.
Similarly, does a 10-year-old child represent such a threat to public safety that we would lock them away? Is the system so poorly developed that we have no other solution or option?
While it is important to make clear that there are consequences for wrong-doing, I believe that the system should be focusing on preventing future crimes, rather than simply punishing old ones. As Dylan Voller, who was first incarcerated at the age of 11, told the Royal Commission in the Northern Territory: "One of the biggest problems we face is the fact that we are being further punished while in prison."
There are many examples from around the world that provide us with some useful alternative approaches. These include: programs to assist parents in supervision and control techniques; treatment and counselling; training courses; community service orders; child and family conferencing; intensive mentoring or family supervision; and professional foster or kin care.
Police also frequently operate diversionary programs for at risk youth. Depending on the age of the child and the particular circumstances, some interventions may be ordered by police, a court or tribunal, or child protection agency, while others are voluntary. Evaluations of such interventions for children consistently demonstrate significantly lower rates of recidivism and better life outcomes than for those who are incarcerated at an early age.
These alternatives are in line with the principles enshrined in the Convention on the Rights of the Child: that detention of children should be a last resort, that children who do offend or are at risk of offending should be understood and treated as children, and that, wherever possible, measures for dealing with such children without resorting to judicial proceedings be pursued.
It's time to seriously think about increasing the age of criminal responsibility and establishing a solid suite of alternative interventions and pathways to support children who are at risk.
No 10-year-old should be waking up on Christmas Day in a jail.