Pearls and Irritations

Any Australian parent and grandparent would be aghast by the actions of the Australian Federal Police (AFP) and Victoria Police involving an investigation into a 13 year old autistic boy who was charged in 2022 with terrorism offences. The boy had an IQ of 71.

During questioning before a senate inquiry, the AFP argued the boy was on the path to radicalisation long before he came to the attention of law enforcement. That comment shows no understanding of autism and other issues that often impact an autistic child. Autism effects people differently, but common issues include learning difficulties, problems with social communication & interaction, and engagement in repetitive behaviours. A child with autism can be easily groomed, but rather than protect the child from harm, as police often do to protect children from online sexual predators, they feed his interest in the terrorist organisation Islamic State, leading him to commit the offences for which he was later charged.

The Common Law presumes that a child under 14 years of age lacks the capacity to be criminally responsible for their acts. That presumption can be rebutted if the prosecution can prove that a child knew it was morally wrong to engage in the act/s that amounted to a crime. But rather than stop the child, police waited until he was 14 to charge him, which would have made it difficult for him to argue he was not responsible for his actions. The case RP v The Queen (2016) is relevant here. That case involved a child of low intelligence who had been convicted of a crime. The High Court of Australia held in that case, that amongst other issues, the rebuttal of the presumption will vary according to the nature of the allegation and the child. Meaning, a child as young as 10 may understand the meaning of right and wrong while an older child may not. According to the High Court, when deciding whether the presumption has been rebutted, a court should take into consideration the intellectual and moral development of the child involved. In the case involving the 13 year old autistic boy, it appears that the boy’s disability and mental capacity were not seriously taken into consideration during the investigation and subsequent prosecution phases by authorities.

The magistrate in throwing out the charges was extremely critical of police behaviour and their handling of the investigation. But the Commonwealth Director of Public Prosecutions (CDPP) also bears significant responsibility for the charging of the boy. The CDPP is an independent body. It has developed a Prosecution Policy which is designed to ensure justice for all, to prevent people from being prosecuted unnecessarily and protect citizens in a democracy from over enthusiastic law enforcement agencies. One of the criteria the CDPP must consider in deciding whether any person should be charged with an offence against Commonwealth law is the public interest. Prosecution Guidelines published by the CDPP list various criteria to be considered when deciding on whether the public interest warrants a prosecution. One of those criteria states: “…the youth, age, intelligence, physical health, mental health or special vulnerability of the alleged offender, witness or victim.” Clearly someone in the CDPP in addressing those broad criteria put little if any weight on the fact the alleged offender was a child with a disability and of low intelligence. Given the child’s intelligence level and disability, those factors should have weighed very heavily in his favour. They did not.

Questions also need to be asked if the police and CDPP took into consideration the United Nations Convention on the Rights of the Child (“the Convention”) during the investigation and adjudication phases. The convention entered into force on 2 September 1990 with Australia signing it on 22 August 1990 and ratifying it on 17 December 1990. Given the way the authorities handled the case, it appears to have resulted in Australia breaching the convention. For example:

• The preamble to the Convention records: “Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance.” The preamble further advises: ” Bearing in mind that, as indicated in the Declaration of the Rights of the Child, the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”;
• The rights of a child must be applied regardless of the child’s disability (Article 2);
• Article 3 provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”;
• Article 23 prescribes: “… a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community”. The article then outlines the obligations of parties to the convention to ensuring that a disabled child has a right to “special care” and the responsibility of a party in providing such assistance.

The application of special care, assistance and special safeguards were clearly not applied to the autistic boy by the authorities in accordance with the Convention. Knowing that the boy had developmental issues should have resulted in authorities applying a high standard of care than they would normally have for a child, which should have resulted in the boy being treated by health and welfare authorities. Or if family circumstances prevented that then the child should have been taken into state care. Law enforcement agencies and the CDPP are legislative bodies and all organisations involved failed to ensure that the best interests of the boy were their primary consideration. They were only concerned about securing a prosecution and no other options appear to have been considered, including welfare and health assistance for the boy.

Australia’s compliance with the Convention is monitored and reported on to the United Nations by the National Children’s Commissioner. I have written to Ms Anne Hollonds, the current Commissioner, requesting that her office investigate the police and CDPP handling of this incident involving the 13 year old autistic boy and whether any breaches of the convention have occurred.

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