Attorney-Generals criminalising 13 year olds is a national disgrace

May 5, 2023
Judge holding gavel in court courtroom at trial

The lethargy in lifting the age of criminal responsibility in Australia from 10 to 14 is scandalous given the numbers of vulnerable children caught up in the brutality of the criminal justice system daily. 

It’s called SCAGS, the Standing Committee of Attorney-Generals. For many years now the Commonwealth, state and territory first law officers and the New Zealand Justice Minister meet and last Friday in Darwin was such an occasion. It could have been a momentous one if every participant decided to stop shirking the issue of lifting the age of criminal responsibility from 10 to 14. A matter that has been on the SCAGS agenda for some years now.

Instead the meeting issued a bland communique which merely kicked the can down the road with phrases such as “[p]articipants noted the ongoing work of the re-convened Age of Criminal Responsibility Working Group (Working Group) to develop a proposal to increase the minimum age of criminal responsibility” and “Participants look forward to considering the Working Group’s report, to be delivered to the Standing Council of Attorneys-General ahead of its next meeting, which will focus on how jurisdictions may support children diverted from the criminal justice system, particularly First Nations children.”

This lethargy, scandalous given the numbers of vulnerable children caught up in the brutality of the criminal justice system daily, is symptomatic of the fact that politics is trumping good policy. Remember it was only in December last year the SCAGS released, after sitting on it for two years, a draft report on the issue.

While the Northern Territory, the ACT and Victoria have lifted the age, currently 12, with a commitment from the latter two to take the age to 14, in the rest of the nation the disgrace of criminalising 10 to 13 year olds continues.

The move to 12 by Victoria last week is, on one view better than nothing, given it comes with a plan to lift the age to 14 by 2027. But it is also a case of refusing to acknowledge the preponderance of evidence which is that 14 is the appropriate minimum age, not 12.

As University of Queensland researchers Tamara Walsh, Robin Fitzgerald, Lucy Cornwell, and Cara Scarpato put it, writing in 2021 in the James Cook University Law Review; “Academic research and practitioners’ experiences support calls for the age of criminal responsibility to be raised to 14 years. The manner in which we respond to children’s offending behaviour must necessarily differ from the way we deal with adults because children lack an adult’s capacity for mature decision-making. A child’s brain does not reach full maturity until they are well into adulthood – at around 25 years of age – so their decision-making may actually be considered ‘impaired’ when compared with that of adults.”

So why then do we decide that half way between 10 and 14 is ok? Clearly a case as noted above, of politicians putting their own electoral interests first and in doing so being prepared to destroy the lives of 12 and 13 year olds.

But it is not just detention that is the issue. Charging a child with a criminal offence involves them being in the inherently hostile environment of a police station, making them have to speak with a lawyer they have never met and whom they will never see again, attend court and sit there while the arcane language of the law rolls out, and listening to a generally white middle class judicial officer. All of this is Dickensian. While the court room might be less austere and the atmosphere less draconian than in Dickens’ time, the process remains trapped in a punitive culture.

While we focus on the minimum age of criminal responsibility we should also be looking to expand the jurisdiction of the youth justice system for those 14 and above to the age of 21-25. At the moment young people of 17 and over are generally dealt with in the ‘adult’ courts – magistrates, district and supreme courts. What this does is expose an 18 year old to the adult justice system, including imprisonment.

Yet as we know there is, as Sibella Matthews and colleague from Harvard University observed in 2018, “a growing body of research in neurobiology and psychology indicating that the cognitive skills and emotional intelligence that mark the transition from childhood to adulthood continue to develop at least into a person’s mid-20s.” In other words, an 18 year old charged with a criminal offence is no different to a 14 or 15 year old yet the 18 year will end up with his or life chances undermined by facing adult imprisonment.

Leonard Edwards, a former Californian judge, noted in 2018 that offenders between 19 and 25 are particularly vulnerable. They are over represented in homelessness numbers, education drop out rates, drug use and mental illness. They need support and wrap around services not a punitive adult justice approach. As Edwards observes, “for the few youths who are not ready to live on their own, they should remain under juvenile court jurisdiction beyond 21, even to age 25. Many of these will drop out of juvenile court jurisdiction in one or two years, but a very few will need support until 25.”

Expanding the age of youth justice regimes is as important as raising the age of criminal responsibility.

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