Back in 2023, Victorian Attorney-General Jaclyn Symes was unequivocal when she was quizzed about the government’s decision to press pause on child bail laws until a new youth justice bill was introduced.
“I do not want a discussion about a youth crime crisis that doesn’t exist,” she said.
But data released late last month by Victoria’s Crime Statistics Agency shows that youth crime is at its highest level in more than a decade.
The number of alleged incidents involving children between the ages of 10 and 17 has spiked by about 20 per cent, compared to the previous financial year.
Crimes like assault, sex offences and aggravated burglary have also risen 14 per cent in the age cohort.
Youth crime is now at its highest level since 2010, according to Victoria Police, which called the figures “fairly disappointing”.
Police Minister Anthony Carbines echoed those sentiments, but said the statistics also showed police efforts were “absolutely working”.
“What we are also seeing is that there is a particular cohort of young offenders — repeat offenders — who continue to disregard the law, and 70,000 arrests over the past year demonstrate that Victoria Police are working harder than ever before to hold offenders to account,” Mr Carbines said.
The proposed solutions have come thick and fast, from ankle bracelets to machete bans, but some justice and human rights advocates say there’s one glaring factor that isn’t getting the attention it deserves: the number of children in the justice system with intellectual disabilities.
Explaining the over-representation of intellectual disabilities
According to an ABS report from 2014, about 2.9 per cent of people in Australia have an intellectual disability. While studies suggest different figures, that number is understood to be much higher among people in prison.
A survey conducted on June 2, 2023 by the Youth Parole Board revealed that out of 540 children in custody on that day, 25 per cent had a diagnosed cognitive difficulty.
Unlike physical disabilities, intellectual disabilities like fetal alcohol spectrum disorder, acquired brain injuries, attention deficit hyperactivity disorder (ADHD) and autism can be invisible, meaning these young people can fly under the radar.
In 2022, researchers from the University of Melbourne tried to answer why children with intellectual disabilities were over-represented and came up with three reasons.
Firstly, children who become disengaged at school because of their intellectual disabilities or neurodiversity are at more risk of youth offending.
Secondly, having an intellectual disability is strongly correlated with child maltreatment, neglect and trauma, which can lead to antisocial behaviour.
And thirdly, children who do offend and have a disability may not understand the police or court process and are more susceptible to interview and cross-examination techniques in stations or courtrooms.
‘I was just saying yes, yes, yes’
The lead author of the University of Melbourne study, Keith McVilly, said it was a phenomenon known as “acquiescence”.
“They don’t want to upset people, they want to get on the good side of people and the best way of doing that, from their point of view, is to please those people, to say yes, to give them the information that they want,” said Professor McVilly, a clinical psychologist of 30 years.
“Sometimes we find that these young people are of the mistaken belief that if they say that they’ve done something, that they’ll go home that night, and they just get themselves further into trouble.”
Researchers say people with intellectual or cognitive impairments may be more susceptible to interview or cross-examination techniques. (ABC News: Paul Sellenger)
For Lucas, who has an intellectual disability, the scenario is all too familiar. He was 15 when he first came into the orbit of police.
“I didn’t know I had an intellectual disability, I didn’t know I had anything, I thought I was just … like any other kid,” he said.
“They took me to the police station, and they started processing me … I was terrified … I didn’t know what was going on.
“Each time … I would get arrested, it would just get worse and worse.”
Lucas, whose name has been changed for his privacy, said things were just as tough when he got to court.
“I didn’t even understand anything the lawyers were saying, I was just saying ‘yes, yes, yes’ so I can speed the processing up and I asked when I would leave,” he said.
The court system can often overwhelm young people with disabilities who have been charged with offences. (ABC News: Paul Sellenger)
He was ultimately jailed three times, an experience he said changed him.
“Each time I go back, it just destroys me,” he said.
“I went in there soft, came out different.”
Leanne Acreman, from Jesuit Social Services, said children who came into contact with the justice system became more marginalised.
“It really commences their trajectory to be incarcerated more often, more frequently, for longer periods of time,” Ms Acreman said.
“It absolutely entrenches disadvantage, and that disadvantage extends beyond just the criminal justice system … and that can stay with them for literally their [entire] life.”
Setting kids up for a ‘life of crime’
Professor McVilly said traditional ways of rehabilitating children, like group work and classroom activities, did not suit those with impairments.
“They can’t read, they can’t write, and also, particularly when it comes to young people with fetal alcohol syndrome disorder, their ability to remember information is severely impaired,” Professor McVilly said.
“They’re listening, but they’re not recalling the information that’s given [to] them because of their cognitive impairment.”
Clinical psychologist Keith McVilly, who has been an adviser to the NDIS Quality and Safeguards Commission. (ABC News: Jack Fisher)
Advocates like Liana Buchanan, the Commissioner for Children and Young People in Victoria, said putting kids with cognitive impairments into prisons was setting them up to fail.
“They are more susceptible, if anything, to peer influence. The prospect of them being more entrenched into offending behaviour because of that process is really high,” she said.
“By treating children with cognitive impairment as though they don’t have that disability, actually, we are channelling them further into a criminal justice system and setting them, in many respects, up for a life of crime.”
Ms Buchanan said that with the right approach, authorities have the chance to turn away a significant number of children from the justice system and, by extension, reduce the crime rate.
“If we assessed all children when they, at the very latest, when they first have contact with police or with the Children’s Court, and then if we made sure that the interventions and supports were put in place … then we could see them not coming into the criminal justice system at all,” she said.
Liana Buchanan says catching impairments like intellectual disabilities early could stop young people entering the criminal justice system altogether. (ABC News: Nicole Asher)
The Disability Royal Commission recommended state and territory governments screen and assess children with cognitive disabilities who were involved in the criminal justice system — a recommendation accepted by the Victorian government in full.
The government said it screened young people within two weeks of them starting a prison or community order.
But the commissioner said that by then, it was too late.
“Don’t get me wrong, that requirement for screening when on an order or entering custody is an improvement,” she said.
“But if you think about it, that means that a child is coming into contact with police, is having charges laid against them, is going before the court and is getting a sentence … without being assessed.
“We need to be getting those assessments done far earlier, so that those children are not being treated as though they had no cognitive impairment.”
The impact of independent third parties
But there are signs that things are changing.
In Victoria, adults and children with a cognitive impairment are assigned an Independent Third Person, known as an ITP, who is a volunteer that supports them when they’re dealing with police.
An ITP’s job is to sit in on a police interview to help alleged offenders, victims or witnesses with a cognitive impairment communicate and understand their rights.
Victoria Police is responsible for engaging an independent third person when they believe someone has a cognitive impairment, and it’s a legal requirement for anyone under the age of 18 to have one present.
The program is run by the Office of the Public Advocate and fresh figures reveal that in the past three financial years, requests for an independent third person has increased by 122 per cent, from 176 to 391.
The outgoing public advocate, Colleen Pearce, who retires this week, said the figures were heartening because it showed Victoria Police was getting better at identifying people with an apparent cognitive impairment.
Victoria’s Public Advocate, Colleen Pearce, says women with disabilities face discrimination from the justice system. (ABC News: Michael Barnett)
Ms Pearce said young people who received help from an independent third person had vastly different outcomes compared to older clients with a disability.
“What we do know about young people who are supported by ITPs is that they’re less likely to be charged following an interview,” she said.
Ms Pearce believed young people could “definitely” be diverted from the justice system if they received the right help, but said there needed to be the political will and funding.
“Young people need support, they need support particularly when they find themselves caught up in the criminal justice system,” she said.
“We need to break the cycle of criminalisation, and it’s very difficult to do that without support.”
Calls for more consistent screening
There are also calls for police to include quick cognitive impairment assessments of children before they are interviewed.
A Victoria Police spokesperson said police understood “people with disability face considerable barriers at all points in the criminal justice system, including reporting crime to police”.
“Officers have a range of resources and training available to assist them in recognising cognitive impairment and communicating with people with disability. This training includes practical and theoretical training on interviewing people with disability,” they said.
Victoria Police says officers are provided with a range of training and resources for interacting with people with disability. (ABC News: Danielle Bonica)
The study from Professor McVilly reported that children in the youth justice system were not screened in any consistent way for cognitive disabilities.
Professor McVilly said there were already Australian-made questionnaires that police could use in the space of 10 minutes.
“It results in an indicator as to whether that person should be referred on for further assessment or not … it’s been widely tested in Australia and overseas, and it’s the sort of tool that I think that we should be using more of,” he said.
A government spokesperson said a new police tool has been developed to guide officers on recognising and responding to cognitive impairment.
“Victoria Police has developed a tool with the Office of the Public Advocate which helps officers in responding to a person who may have a cognitive impairment. This includes people whose impairment is the result of an acquired brain injury,” the spokesperson said.
For Lucas, things have changed significantly since he received help from Jesuit Social Services including a support worker and secure housing, all things that were absent from his life a few short years ago.
“I don’t think I would have went to jail, I think that it would have kept me out of jail, it would have put me like in line, would have given me the opportunity to do things differently that would,” Lucas said.
“Having these supports there has opened a new world for me, has made me the best shape of myself.
“I don’t feel like I’m a bad person, just made bad judgements.”
