Criminal responsibility age needs to be raised

10 years of age.

Think about a child you know who is that age.

We all know children belong in classrooms and playgrounds, not in handcuffs, courtrooms or prison cells.

And everyone knows that children do best when they are supported, nurtured and loved.

This was acknowledged internationally when, in September 2019, the United Nations Committee on the Rights of the Child recommended that all nations raise the age of criminal responsibility to 14.

This issue has been debated across Australia for years, but with little action, leaving us at odds with other nations.

Back in 2021, Australia’s human rights performance was in the spotlight, as the Australian Government appeared before the UN Human Rights Council in Geneva for its major human rights review – a review that happens every four to five years.

One of the key issues was raising the age of criminal responsibility.

Health, legal and social justice organisations such as the Law Council of Australia, the Australian Medical Association and First Nations’ led groups have long campaigned for the legal age of criminal responsibility to be raised to 14.

The United Nations Committee on the Rights of the Child states that adolescence is “a unique defining stage of human development characterised by rapid brain development” affecting decision making and the ability to control impulses and therefore, the minimum age of criminal responsibility should be raised to ‘at least 14’.”

Currently, children between the ages of 10 and 14 are subject to the criminal law, but are also covered by a rebuttable presumption, known as doli incapax.

This means a child in that age range is not criminally responsible for any offence unless it can be shown they had the capacity to know they ought not to commit the offence.

The onus of proving this lies with the prosecution, but it still subjects the child to the stress and trauma of the criminal justice system.

Last December, the Draft Final Report 2020 of the Council of Attorneys-General Age of Criminal Responsibility Working Group, was finally released.

Noting the very strong support from legal, medical, and human rights organisations for the move, the draft recommended raising “the minimum age of criminal responsibility to 14 years without exception”.

The decision was based on medical and scientific evidence and brought Australia into line with UN Committee recommendations and the average international age.

The report also recognised that children and young people who come into contact with the justice system have comparatively higher rates of childhood neglect and trauma, familial instability and substance abuse, as well as lower levels of education.

Commenting on the recommendation in the report, Dan Nicholson of Victoria Legal Aid said: “We all want to be part of communities where children are supported to grow and develop positive behaviours.”

What we do know is that the younger a child is when first having contact with the justice system, the more likely they are to go on to re-offend and become entrenched in the justice system.

“The younger a child is at their first sentence, the more likely they are to re-offend generally, re-offend more frequently, re-offend violently, continue offending and be sentenced to an adult sentence of imprisonment,” Mr Nicholson said.

“Children need support through a health and welfare-based response to their actions, not early involvement in the criminal justice system.”

The evidence is clear, locking up children does not make our communities safer, instead, it sets children on a path of further offending and into the adult criminal justice system.

Strong, healthy communities are the most effective way to prevent crime and make communities safe.

Over the past financial year, it has been estimated that nationally, close to 600 children aged 10 to 13 were locked up, and thousands more hauled through the criminal legal system.

Due to the ongoing impacts of colonisation and the inequality and systemic racism in our laws and policies, Aboriginal and Torres Strait Islander children are vastly over-represented in the youth justice system, accounting for over 60 per cent of these children.

To date, there has been no national action in response to the report’s recommendation.

Given the slow pace of national reform to “raise the age”, Victorian Premier Daniel Andrews recently indicated that he would be taking steps to address this issue in the first half of this year rather than waiting for a national consensus.

“I think a national law would be better, but at some point you have to call time on national processes that just don’t deliver,” he said.

Victorian Aboriginal Legal Service chief executive Nerita Waight recently said: “Victoria needs to lead the way by raising the age to at least 14 years old with no exceptions. This needs to be done and it needs to be done right.”

In an open letter to Victorian Attorney-General Jaclyn Symes, the Co-Chair of the First Peoples’ Assembly Aunty Geraldine Atkinson also supported raising the age.

“We don’t want another year to go by with more of our children getting caught in the quicksand of the criminal justice system,” she wrote.

“We need reform, yesterday.”

So it is up to the Victorian Government to act now – the futures of too many young people depend on their action.

To find read the Draft Final Report 2020 of the Attorneys-General Age of Criminal Responsibility Working Group visit draft-report-2020-age-of-criminal-responsibility.DOCX (live.com)

To sign the petition to raise the age visit https://raisetheage.org.au/home#petition