Why tough proposed laws for young offenders simply won’t work

A sharp focus continues to be placed upon the interaction between some young people and the criminal justice system.

The State Government’s Young Offender Plan 2025 is the Government’s roadmap in addressing youth offending in South Australia. It comprises some proposed legislative reforms, as well as outlining additional funding to target recidivism. 

One aspect of the Young Offender Plan worth considering in detail is the proposal to apply non-association laws to youth street gangs, similar to what currently applies for members of “bikie” groups.  

Historically the anti-association laws were implemented with a view to controlling dangers posed to the community by motorcycle groups. Such laws were implemented on the premise that if members of certain organisations were unable to associate in public that would naturally bring an end to their criminality.

The laws work to effectively bar members of a declared organisation from converging in public together. While this has naturally forced the closure of clubrooms where members of such organisations may have met in the past, the law extends further than one might think. By way of example, if several members of a declared motorcycle organisation attend a public place together (such as a shop), they will fall foul of the law and face incarceration. This is the case even if the members accidently meet in public for a matter of seconds.

Anti-association laws raise significant queries about executive power, as well as human rights considerations for those who find themselves affected by the legislation. Earlier iterations of such laws have been considered and declared invalid by the High Court of Australia in the past.

That aside, there is a more immediate problem with these laws: they don’t work.

In the years since the laws commenced, their ineffectiveness has been largely underpinned by the fact that in response to such laws, many of the groups they apply to have effectively gone “underground”. With no longer a visible presence, police are unable to detect the extent to which criminal activity is occurring and the membership of such groups has increased since the laws have commenced.

The CCL team has not reviewed a copy of a proposed Bill seeking to give effect to these reforms, but understands the laws will be implemented in a similar vein.  The net result of this would likely be that youth gangs will be less visible to police and authorities.

There are important questions about how these laws would apply in practice, noting the concerns arising with their use in other contexts. Even if the laws were working effectively, duplicating them in the case of young offenders is going to have its complications. Important queries that arise include whether youths subject to the new laws will be able to associate with their relatives (noting many youth gangs may be comprised of family members).

The most glaring question, however, is this: How will such laws enable police to stop criminality among young people?

A final word on the Government’s young offender plan

The team at CCL considers law reform is not the answer to all the community’s problems. In the case of youth justice issues, funding should be provided to respond to youths when they first come into contact with the criminal justice system.

A statistic from the Young Offender Plan that is difficult to gloss over is that between 2023 and 2024, 20 young people were responsible for 11 per cent of charges in the Youth Court. 

It is important to consider the offences that young people regularly commit. Breaching bail conditions makes up a very significant portion of this and an initial decision to place someone on remand can give rise to the possibility of such an offence occurring. 

It is well known that remanding even for a short period of time young people in custody on bail offences or other criminal offences will have a deleterious impact on youths into the future. Ensuring the focus is on when (and preferably, before) young people engage in criminal offending will have a resounding impact on whether our young people are best placed to lead productive lives or are set up for failure.