The human rights of children are at risk if control orders are placed on 14-year-olds

On Tuesday this week Attorney-General George Brandis foreshadowed extending laws concerning control orders to fourteen- and fifteen-year-old children.

Brandis said the fact that a 15-year-old boy had been inspired to perform a terrorist act demonstrated that the reach of Islamic State and IS surrogates and agents in Australia is extending to people younger and younger. In announcing the extension of the control order regime to fourteen-year-olds, he also indicated that the change will come with measures that limit the capacity of police to question or deal with minors in unreasonable ways.

Let’s be clear what we are talking about. We are talking about imposing a control order on the basis of suspect or risky behaviour where no crime has been committed.

We can already take action against a person as young as ten who commits a crime – that is currently part of our legal system and, in the main, young people understand this. In this system actions that can be taken range from detention, through supervision in the community, to diversionary programs. We also have the capacity to place conditions and controls on young people in the community who have committed crimes. These measures are already available to state and territory juvenile justice systems.

I am particularly concerned that using laws to control the behaviour of a young person when they have committed no crime could be counter-productive, and potentially lead young people to become even more angry and alienated. It could drive them to take their activities further underground, and loose confidence in and respect for our justice system.

Some of the kinds of things that could be imposed on a young person under a control order include: being ordered to wear a tracking device; the imposition of curfews; and being required to not associate or communicate with certain people, including members of their own families or other school students. It might also involve denying access to computers or phones, having to report at regular times and places, or being prevented from visiting certain places.

Without close case management and support children are likely to struggle to adhere to these kinds of rules.

By their nature adolescents take risks as they explore the world and their identity. Their brains are immature and rapidly developing. This means that they do not always make good decisions, are susceptible to peer pressure and impulsivity, and, as parents know, they can be emotionally volatile. The developmental journey of children, their special vulnerabilities and the need to act in a child’s best interests is recognised the Convention on the Rights of the Child, to which Australia is a signatory.

The proposal to extend control orders to younger teens enlivens a raft of potential human and child rights issues that go to our basic beliefs and value systems. These include rights to liberty, freedom of association, speech and expression, movement, privacy, and to be treated with dignity and respect.

There is also a grave risk that a child’s education will be disrupted at a critical time, along with their participation in prosocial aspects of community life. Fourteen is an age where it is easy to go off the rails, disengage, make bad associations and get in trouble. An early introduction of young people into the criminal justice system as a result of these measures would not be a good outcome for these young people or the community.

A better response is to work with communities, families and children to help divert vulnerable children from antisocial pathways. Part of this response must involve helping children to trust and open up to adults about their thoughts, feelings, and experiences in safe, supportive environments. Imposing control orders on an already disaffected young person could have the reverse effect, effectively shutting down communication avenues.

I don’t for a moment seek to underplay the risks here to both children and the community.

It is true that younger children are being targeted and preyed on by terrorist forces, and there will be circumstances when intensive mentoring and supervision might serve to safeguard a child deemed to be at risk of exploitation and negative influences. It raises several questions. Do we need to change the law to implement this? What form should our engagement with children take? How can we include and empower parents and families in this space?

It remains to be seen what safeguards will be proposed to protect the rights of children and ensure decision-makers within the police force and the courts act in the best interests of the child.

But from a human rights perspective any proposal to extend the control order regime is not justified unless it is shown to be lawful, necessary and proportionate. I am not convinced the case for such a change has been made.