The release of a draft report, commissioned in 2020, by the Standing Council of Attorneys-General and chaired by the Australian Attorney-General Mark Dreyfus, KC, has renewed calls for Australia to raise the age of criminal responsibility.
The report, prepared with submissions by over 90 Aboriginal and Torres Strait Islander health, legal, and human rights organizations and experts, recommends that the age of criminal responsibility in Australia be raised from 10 to 14, without exception.
Various legal, human rights, and academic groups have consistently advocated for this change, arguing that the low age mark inflicts trauma on children, unfairly targets Australia’s First Nations people, and “does not reflect the multiple and complex needs of children and young people who come into contact with the justice system.”
In 2019, the U.N. Committee on the Rights of the Child specifically recommended that Australia raise the minimum age of criminal responsibility from 10 to 14 years, a call reiterated in the country’s Universal Periodic Review in 2021.
More pertinently, the 1991 Royal Commission into Indigenous Deaths in Custody highlighted that “the number of Indigenous kids who are brought before Children’s Courts remains disproportionately high in comparison with non-Indigenous kids. The rate at which they then are imprisoned in comparison with non-Indigenous kids is even more pronounced.”
In a statement given to The Diplomat, Monique Hurley from the Human Rights Law Centre argued that the report “adds to the mountain of evidence that is crystal clear – children belong in playgrounds and schools, never in prisons and police cells.”
“Every day that our chief law officers refuse to act on this straightforward reform, they are condemning a generation of children to the harm inherent in being locked away behind bars.”
One of the main driving factors behind the proposed change is the mountain of evidence showing Aboriginal and Torres Strait Islander children are grossly and disproportionately involved in the criminal system. Factors driving children as young as 10 into the system include high rates of mental health conditions, cognitive disabilities, intergenerational trauma, and socioeconomic disadvantages.
George Newhouse, CEO and principal solicitor of the National Justice Project, which supports the “raise the age” campaign, agrees, telling The Diplomat that “many young people in the justice system have complicated and multifaceted needs, including mental health and disability.”
“Nationally, over 75 percent of imprisoned children and young people are living with one or more mental illness… by locking up children, we are causing irreparable harm to the ones that need support and care the most.”
Across Australia, current laws note that children aged between 10 and 14 are subject to the criminal law but are also covered by a rebuttable presumption – known as doli incapax. It is assumed they are incapable of committing a crime and any prosecution must prove that the child actively knew their behavior was criminally wrong.
However, this presumption doesn’t prevent a child from experiencing the trauma of the criminal system – being charged and held in custody until the charges might be dismissed.
Hannah McGlade, a Kurin Minang Noongar woman and human rights advocate and lawyer, has pushed for reforms in Western Australia, where Aboriginal people are imprisoned at a higher rate than African Americans in the United States.
“It is horrific to think that children at 10 are being incarcerated,” she told The Diplomat. “They are predominately Aboriginal people, and it is harming them for life and increasing their family’s burden of heavy trauma.”
“We know that children being incarcerated at a young age increases their risk of recidivism and further incarceration. No society should advocate for this.”
The report echoes this, stating that “studies have shown that the younger the child is when first having contact with the justice system, the more likely they are to go on to reoffend.”
Some state governments have already committed to changing their laws. The Northern Territory government will raise the age of criminal responsibility to 12 from this year, while the Australian Capital territory (ACT) will progressively increase theirs to 14 by 2027.
The Tasmanian government has said it will lift the age of incarceration to 14 while still maintaining the age of criminal responsibility at 10.
Neighboring New Zealand raised the age of criminal responsibly to 14 for most crimes (there are exceptions for serious offenses) while in fellow commonwealth nation Canada, the minimum age is 12. In Denmark, it sits at 15.
For Australian politicians, any “tough on crime” rhetoric has often come at the expense of Indigenous people. Some academics have even argued that raising the age of criminal responsibility will inevitably mean crime goes unpunished.
However, Newhouse points out that there is a plethora of “practical solutions” to help divert children from the justice system. Nonetheless, “it’s a question of political risk and governments [are] not wanting to be seen as ‘weak’ on crime.”
In an editorial for the Sydney Morning Herald, president of the New South Wales bar association, Gabrielle Bashir, SC, proposed that children need support that helps to address their complicated needs, not exacerbates their chances of reoffending.
“This does not mean no consequences for children engaging in behavior that poses a risk to themselves or the community. What needs to change is the nature of the response.”
Newhouse also argues that punitive responses fail. “Children deserve special protection and do not belong in prisons. The focus must be on prevention, diversion, and support rather than punishment,” he told The Diplomat.
“Justice reinvestment, restorative justice, and culturally appropriate diversionary programs have been found to be more cost-effective responses. Community-designed and -led programs are best placed to support First Nations children, families and communities.”
Tom Penglis, co-founder of the Western Australian justice association, who works closely with First Nations groups concurs, telling The Diplomat that “State and Territory governments must commit to raising the age and to investing in alternatives to imprisonment if they are serious about reducing youth crime.”
“Taking kids out of prisons and placing them in alternative therapeutic environments where they can receive appropriate care will improve outcomes for both the child and the community.”
One thing is clear: The current age of criminal responsibility is having an adverse impact on young Australians, and especially First Nations people. It is financially damaging, both in the short term and in the longer term as those exposed to the criminal justice system at such young ages, when they are not fully developed mentally, often end up reoffending.
As the Law Council of Australia notes, somewhat dejectedly, “at 12, a child cannot lawfully sign onto Facebook but can be questioned, arrested, detained and imprisoned.” Without the age being raised — and children being helped — recidivism will only continue, unabated.