Applications

Policy framework for children and young people

The evidence is widely established that incarceration has harmful and criminogenic effects on children and young people, leading to a greater likelihood of future contact with criminal justice systems than rehabilitation; this is particularly the case for Indigenous children and young people and those with cognitive disability, who overwhelmingly come from backgrounds of disadvantage, with histories of abuse and violence, and complex support needs who end up in the criminal justice system after other systems have failed to support them. Yet in multiple jurisdictions across Australia, more punitive legal and policy initiatives have recently been introduced that will inevitably lead to higher incarceration rates of young people. The social determinants of justice is being developed and operationalised as a policy framework to reduce the criminalisation and incarceration of children and young people. This work will involve collaboration with key stakeholders to explore systemic and practical barriers to a whole-of-government approach, and then identify tangible recommendations to develop a policy framework that could be applied and adapted more widely.

Brief on ‘doli incapax’ in NSW, the minimum age of criminal responsibility, and implications for advocacy and law reform

Early police contact was identified as one of the eight social determinants of justice and the lower the age of first police contact, the more likely there would be a significantly higher number of police contacts, arrests and a lifetime of criminal justice involvement. This is particularly so for children with disability and those in out-of-home care who have been characterised as having ‘challenging behaviours’ and who are frequently left to the police to manage, as well as Indigenous children who are significantly more likely to have contact with police at a younger age as both victim and offender.

This brief explores how the criminal justice system in NSW deals with children aged 10-13 years who often have complex support needs and move from being characterised as ‘at risk’ by police to ‘a risk’ as they move into their teens. The legal presumption of children as ‘doli incapax’ (‘incapable of crime/wrong’) is frequently cited as a major reason for not increasing the minimum age of criminal responsibility (MACR) in Australia. The presumption is seen as both over- and under-protective by different stakeholders. This brief sets out the thresholds for doli incapax, the differences in the law and practice in NSW versus other jurisdictions, the serious concern with it being understood as a form of individualised justice or alternative to MACR and concludes with the implications for advocacy and law reform in NSW.

Therapeutic Pathways for Children

Undertaken in 2024, Therapeutic Pathways for Children was a project led by Peta MacGillivray, commissioned via a partnership between the Aboriginal Legal Service NSW/ACT (ALS) and the NSW Department of Communities and Justice (DCJ). It included a series of co-design workshops with key stakeholders including system-impacted young people, government decision-makers and community organisations. The final report, Therapeutic Pathways for Children: A system review & summary of an evidence-based approach to the design and delivery of therapeutic pathways for children (forthcoming), identifies that by addressing the underlying social determinants of justice, therapeutic pathways can divert and prevent children from criminal justice system contact, particularly those ‘at risk’ due to systemic factors. 

Seen, Heard, Leading - Setting the Standard

In 2024, Mounty Yarns, a project of Mounty Aboriginal and Community Youth and Community Services (MAYCS), approached Peta MacGillivray to assist in research led by young people that identifies the best ways that Aboriginal community-controlled organisations (ACCOs) can lead programs and models that act as an alternative to children and young people being involved in harmful police, child protection and youth justice systems. 

Working together on this project, called Seen, Heard, Leading – Setting the Standard, the UNSW researchers and MAYCS co-researchers use a critical, Indigenous- and youth-led participatory research approach to identify these programs and models. An anticipated output from the project is a set of evidence-based principles for Youth Workers and community practitioners working with systems-impacted young people, as well as working with Mounty Yarns to provide training for its workers, as well as youth justice advocacy support.

Yuwaya Ngarra-li partnership with the Dharriwaa Elders Group

Since 2018, UNSW has been working on improving outcomes for Aboriginal children and young people in Walgett as part of the long-term community-led Yuwaya Ngarra-li partnership between UNSW and the Dharriwaa Elders Group. Yuwaya Ngarra-li has worked to develop, implement and refine a holistic, community-led model to divert young people from the criminal justice system in Walgett, including a new Walgett Wellbeing Service for Aboriginal children and young people and their families. 

A customised linked administrative dataset of Aboriginal children and young people in Walgett has been developed through Yuwaya Ngarra-li that includes longitudinal data from NSW agencies (health, education, housing, disability services, police, courts, legal services, youth justice and corrections agencies) relating to all Aboriginal children and young people in Walgett and their parents, siblings and children. The aim is for this to enhance understanding of, and inform locally-led responses to, the relationships between institutional contact and pathways and different experiences and outcomes for children and young people in Walgett. This databank will enable the quantification of the role of the various social determinants of justice in criminalisation and incarceration, and identification of effective points and processes to avoid or reduce contact with criminal justice agencies and support Aboriginal children and young people to thrive in their families and community.