Forgive them for they know not what they do: stop putting kids in jail

Feb 17, 2021

There are more than 600 children aged 10 to 13 in prison in Australia, 65% of whom are of Aboriginal and Torres Strait Islander heritage. A private members’ bill has been introduced to raise the age of criminal responsibility to 14, yet it is opposed by Attorney-General Christian Porter. Surely Australia is ready to stop locking up children?

The Federal Attorney-General Christian Porter, in a statement to the ABC, called the bill highly controversial because it would mean there would never be any circumstances where a person aged 10 to 14 could be held responsible for their actions.

Porter was previously WA Attorney-General. Presumably he knew that almost 40 per cent of Western Australian youth in detention have fetal alcohol spectrum disorder, and almost 90 per cent have a neurological impairment.

We are waiting for change, but the Coalition apparently needs more time.

It is hard to believe, but in Australia, today, there are more than 600 children, aged between 10 and 13, in jail. About 65% of them are of Aboriginal and Torres Strait Islander (Indigenous) heritage.

If you wanted to consciously set about handicapping a person for life, what better way than to separate them from family and friends, take them out of the classroom, lock them up, and impose the rigors of life in an institution on pre-pubescent children.

This reeks of another ‘Stolen Generation’ disgrace, and we can’t blame ‘redneck’ police, or consciously racist bureaucrats for this. No, this state of affairs sits squarely on the shoulders of our federal and state attorneys-general. In November 2019, Attorney-General of Australia, Christian Porter, was of the opinion that the current system was working well. That opinion appears to be, at best, wilfully blind.

One of the cornerstones of criminal law in Australia, and other common law jurisdictions, is the concept of “mens rea“. The phrase means a guilty mind, and it must be present, to prove intent to commit a crime.

Think back to when you were 10. Did you know the difference between ‘good’ and ‘bad’? How about lawful and unlawful? How did you rate when it came to weighing up your options, the consequences and rewards of your intended action, and your willingness to accept the outcome, if there was one?

The attorneys-general of this great nation have been in a bind. They feel they have not had enough time to consider whether it is appropriate to continue to lock children up in detention. That is not to mention the 600 who are already there.

In mid-2020 they indicated that more work needed to be done on alternative forms of punishment before they could make recommendations. The last point appears to ignore the real possibility that instead of looking at alternative punishments, perhaps we could look at whether they are old enough to actually be criminally liable. They are legally infants. They cannot vote, or marry, or drive a car, or sign a contract, or consent to sexual activity, so how do they commit crimes? We could consider improving their lives, rather than jailing them.

Why change is necessary, now

Professor Judy Cashmore, of the University of Sydney Law School, lists five reasons why it would be a good idea to lift the age of criminal responsibility in Australia

  1. Most children who offend at these ages (10-13) will “simply grow out of it” with appropriate support, but those who won’t will need an appropriate public health response, not a justice based one;
  2. The younger a child is at their first contact with the criminal justice system, the greater their chances of future offending. Increasing the age of incarceration will mitigate the harm to the child;
  3. Indigenous children are highly over-represented in this group of children so positive, culturally and age-appropriate responses are critical to reduce this over-representation;
  4. It is extremely costly to put children into juvenile detention – that money urgently needs to go into therapeutic justice re-investment;
  5. Raising the age to 14 would bring Australia into line with the UN Convention on the Rights of the Child. It is time Australians were again proud of their civic culture, rather than being stuck in a time-warp of ‘old white man’ reaction.

The Morrison Government has a chance to undo some of the reputational damage it has caused to Australia over the past eight years. Raising the age of criminal responsibility from 10 to 14 is a no-brainer. There seems overwhelming support among the public. Let’s get the children in custody released quickly. Their lives are being trashed as we speak.

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