Case Explained: Victorian AG admits youth crime laws violate human rights charter – Legal Perspective

You haven’t seen fear, criminal defence lawyer Jason James says, until you’ve seen a child in custody for the first time.

“When they’re alone in the cells and they’ve got no way of knowing what’s going to happen, and now they’re waiting to speak to their lawyer – you see the fear in their eyes,” James tells The Saturday Paper.

“Some of them put on a tough act, but some of them really show you just how terrified they are.”

James knows this feeling himself – he once was the scared child. Now the practice leader at MJR Youth Crime Group, James was a youth offender and on supervised bail as a teenager before he managed to turn his life around.

Under new Victorian government reforms, James could have faced an adult court and received a long prison sentence.

Two weeks ago, Premier Jacinta Allan stood in front of posters proclaiming “Adult Time For Violent Crime” to announce that children as young as 14 would face adult courts and potential life sentences for a range of offences such as aggravated carjacking and aggravated burglary (serious and repeated).

The reforms, passed into law this week with bipartisan support, are “absolutely nuts”, James says. “Society is essentially going to turn its back on their childhood and punish them as hard as it can.

“We’re looking at giving kids adult time – that’s more or less shutting the door on them and saying, ‘You’re in the too-hard pile. We’ll see you in 20 years,’ ” he says. “We all lose our balance sometimes. Do we really want to push them off into the deep end?”

Jonathan Raeina knows from personal experience how easily a child can slide into the criminal justice system. After being physically abused by his stepfather at the age of 11, Raeina moved into residential care, which eventually caused him to “spiral”.

He said the first time he received support was from youth workers at the Parkville youth prison. “I started committing crimes just to be with the workers I loved, because they showed me love and care,” Raeina tells The Saturday Paper.

This cycle continued for most of his teenage years, before he was moved to an adult prison. He eventually broke out of the pattern of offending and turned his life around.

Raeina is now a lived-experience mentor with 16 Yards, a Victoria-based organisation that provides one-on-one and group mentoring for young people in the criminal justice system.

“Punishing kids and possibly serving them with a life sentence doesn’t really help their future or our future – it’s just locking them away and not really helping them,” Raeina says.

“Just show some compassion. Look at the mentors that have made a big change, use that as an epiphany to encourage the young kids to become mentors themselves.”

Under the new laws, offences such as home invasion, carjacking and armed robbery  would face adult sentencing in an adult court. Serious offences of this nature carry sentences of up to 25 years in prison. Currently the Children’s Court can impose a maximum penalty of three years in prison.

The state government has also removed the principle that incarceration should be a “last resort” for children.

In a statement tabled to the Victorian parliament with the introduction of the legislation, the attorney-general acknowledged the adult time reforms are incompatible with the state’s own Charter of Human Rights and that they will lead to more children receiving prison sentences.

“I acknowledge that the reforms interfere with fundamental protective and criminal process rights of children to a significant extent, in circumstances where other jurisdictions and international bodies have deemed such an approach to be incompatible with children’s rights,” Attorney-General Sonya Kilkenny noted in the bill’s statement of compatibility with the charter.

“I also recognise the body of evidence that questions whether harsher punishment is an effective deterrent for children,” Kilkenny wrote.

“The government intends to proceed with these reforms notwithstanding the conclusion that they are incompatible with the Charter.”

The premier’s office did not respond to requests for comment from The Saturday Paper.

The reforms met with widespread objections from community legal centres, human rights groups and youth workers. The Victorian ombudsman, in a rare intervention, wrote to state members of parliament warning that children could face inhumane conditions in custody.

The Victorian Bar and the Criminal Bar Association also expressed concerns, saying they were “unaware of any evidence” the changes will improve community safety.

Commissioner for Aboriginal Children and Young People Meena Singh argued the reforms “will not create a safer Victoria”. A week later, she quit her role, saying “every child and young person in this state is deserving of safety, love, care and opportunity”.

Many of these organisations have pointed out that the reforms also appear to contradict the Victorian government’s own Youth Justice Strategic Plan 2020-2030, the first principle of which states “children and young people must be treated differently to adults” and “developmentally distinct and appropriate services” must be delivered.

The legislation “will have a devastating effect on children who have too often experienced violence, abuse and homelessness themselves,” says Lee Carnie, the chief executive of community legal centre Youthlaw.

“Children do not belong in prison cells.”

The reforms were announced following significant reporting in the tabloid media on a “youth crime wave” and continual campaigns for harsher laws from conservative media, including the Herald Sun.

Youth crime has increased in Victoria in recent years. In the year ending June 2025, recorded alleged incidents of youth crime rose by 13 per cent to just over 25,000, according to the Crime Statistics Agency. A comparatively small group of repeat offenders has driven recent increases. In 2024, 7414 children were arrested a combined 24,550 times, with 330 children arrested three or more times for violent crimes.

The cost-of-living crisis has been cited as a contributing factor. Another is organised crime. A recent report by the Australian Criminal Intelligence Commission found “traditional mafia-style organisations and outlaw motorcycle gangs” and less structured groups were increasingly recruiting children “hired to carry out violent acts in public”, such as carjackings and firebombing.

The report said children have a “unique value” as they are “cheaper to hire…more easily influenced, impressionable and accessible online”.

The Victorian government did acknowledge this the day after announcing the adult time laws, with plans to increase sentences for adults using children to commit crimes. In a social media post, The deputy premier, Ben Carroll, declared a “zero tolerance approach for the evil people preying on vulnerable young Victorians”.

These are the same “vulnerable children” who will face potential life sentences in adult courts under the new laws.

Media reporting around youth crime is failing to humanise these children and explain what is actually needed to help turn their lives around, Raeina says.

“They do a lot of charges, and the media can just mention their charges, but they don’t mention that the kid was abused, they don’t really talk about the cause or where it began at a young age,” he says.

Raeina says the children he now mentors have similar stories to his own, with significant trauma. “A lot of them come from a drug and alcohol household, or a violent household,” he says. “They’ve become very poor and broke, and the relationship with the parent was never there.

“They lost that sense of love and care that a parent should show at a very young age, and most of them have rebelled at a young age.”

The Victorian Aboriginal Legal Service’s Balit Ngulu program, the only dedicated legal service for Indigenous children in the state, provides holistic and legal support to children in the criminal justice system. Its lawyers have seen firsthand how children can be turned away from crime without being incarcerated.

Oscar* was a client of the service. Removed from his family and placed into out-of-home care at a young age, he was eventually charged with several offences, including aggravated carjacking and aggravated burglary, when he was 16 years old.

The Children’s Court heard his case, and he was handed a sentence that considered his circumstances and age. Since then, he has had no further contact with the criminal justice system. Under the new laws, Oscar would have faced an adult court and would likely have received a lengthy prison sentence.

At the end of last month, the Victorian government announced a new Violence Reduction Unit, in an attempt to replicate an effective Scottish scheme. Just under $20 million has been provided to the unit, and $7.7 million for youth mentors.

16 Yards is the first organisation to receive funding under this scheme and will go into youth prisons and work directly with the children. “We talk them through where the troubles started in their lives and help them recognise accountability, and the feelings they are feeling, and how they acted out,” Raeina says.

“They’re still young, lots of them haven’t even gone through puberty, and dealing with emotions is very hard for them. They’re still adapting to life and learning about themselves. We’re teaching the skills that helped us see the light.”

James and Raeina both say they are examples of how youth offenders caught up in the criminal justice system can rehabilitate if they are spared incarceration.

James credits his success in doing this to the support of family and loved ones, and “absolute luck”.

“Some of these kids aren’t as lucky as I was,” he says.