Under heavy pressure to raise the minimum age of criminal responsibility, Attorneys-General disappoint

Dec 18, 2023
Taken this focused picture of the main entrance of a jail with people waking aware from it. Tried to capture the prisoner escorted by three security personal.

More than 100 health, legal, social, community services providers, advocates and Aboriginal and Torres Strait Islander Community Controlled Organisations have stepped up pressure on the nation’s Attorneys-General to raise the age of criminal responsibility nationally to at least 14 years old, with no exceptions.

Their joint statement was released ahead of a meeting of the Standing Council of Attorneys-General (SCAG) on 1 December, where participants are due to report their jurisdiction’s position on raising the minimum age of criminal responsibility.

At the Council’s meeting in September, members “agreed-in-principle” to release after tomorrow’s meeting the final report of the Age of Criminal Responsibility Working Group on the services and supports needed to support children diverted from the criminal justice.

Today’s joint statement by health and other advocates noted that a report prepared for SCAG by the Council’s own Working Group in 2020 recommended that “the Commonwealth, State and Territory governments should raise the minimum age of criminal responsibility to 14 years of age, without exception”.

The statement said that raising the age of criminal responsibility to at least 14 with no exceptions is the absolute bare minimum to be in line with medical expert advice and international standards for child development. Any commitment coming out of SCAG to raise the age to 12 falls short of this.

“The current low age of criminal responsibility disproportionately impacts Aboriginal and Torres Strait Islander children, children with disabilities and is a key driver of contact with police and the criminal legal system,” said the statement.

“Raising the age to at least 14 will reduce the over-representation of Aboriginal and Torres Strait Islander children in prisons and help governments meet their Closing The Gap targets.

“While governments refuse to act on the significant evidence gathered by Aboriginal and Torres Strait Islander organisations, medical and legal experts, and human rights organisations, which support raising the age and alternatives to youth prisons, hundreds of children are spending their childhoods behind bars in Australia right now.”

“Do the right thing”

Maggie Munn, Gunggari person and National Director at Change the Record, said advocates, families and communities have waited years and years for governments to act on the advice from experts across legal, medical and psychological fields to raise the age to at least 14.

“And yet here we are still waiting to see change,” she said in a statement. “Children need care and support, not cages. Attorneys-General have an opportunity to finally act in accordance with human rights standards on this issue, and we urge them to do the right thing.”

Nerita Waight, Co-Chair of the National Aboriginal and Torres Strait Islander Legal Service, said Aboriginal children are massively overincarcerated by a discriminatory and punitive system. We should be investing in the support these children need, not stealing their futures by putting them in prison, she said.

“It’s almost a decade since the Attorneys-General agreed to develop a plan to raise the age and they still have not delivered. It’s time to get this done.

“Aboriginal communities have been advocating for this reform for so long, and we’ve just had a year where politicians promised to listen to us more and to implement the policies we need to reduce the discrimination we face – this is the right time for governments to fully back raising the age.”

Monique Hurley, Managing Lawyer at the Human Rights Law Centre, said every day that governments refuse to act on this straightforward reform is another day of failing a generation of children who are being harmed and locked away behind bars

“For years, governments across Australia have sat on their hands and failed to act on advice from medical experts, independent parliamentary inquiries and their own justice departments that the age of criminal responsibility should be raised to at least 14 years. The Standing Council of Attorneys-General must do the right thing by children: raise the age of criminal responsibility to at least 14 years, for all children.”

Children’s Commissioners

Meanwhile, an open letter from Commissioners, Guardians and Advocates for Australia’s children, who are tasked with informing governments on measures to protect their safety and rights, also called for the age to be raised.

Cautioning against a “confusion” of different legislation and practice across the country, they said the minimum age of criminal responsibility in all Australian states and territories must be at least 14 years.

That is what the United Natons Committee on the Rights of the Child (UNCRC) has recommended, based on a wealth of evidence and expert advice, and it is the international benchmark.

“Every day that the age of criminal responsibility remains unchanged is another day that children as young as 10 can be taken through police stations, courts and locked up in youth detention centres,” said the letter. “This causes ongoing harm to children and fails to deliver on community safety.”

“Listen to health experts”

Professor Steve Robson, President of the Australian Medical Association, said the health advice is crystal clear – that jail has terrible impacts on the health and wellbeing of children.

“It is not appropriate to hold children criminally responsible at this cognitive developmental stage. All children have a right to feel safe, secure and go to school – jail is not the place for this,” he said.

“The AMA calls upon Australia’s Attorneys-General to abandon the current piecemeal approach and ensure that the minimum age of criminal responsibility is set at 14 years across the country, with no exceptions.”

In a separate statement, the Royal Australasian College of Physicians urged all Attorneys-General to agree to raise the criminal age of responsibility to at least 14 years of age, without exception.

RACP president Dr Jacqueline Small said paediatricians and physicians support at least 14 as the uniform, nationally consistent, minimum age of criminal responsibility.

“Agreement this Friday is the best hope for nationally consistent reform to keep very young children out of the criminal justice system. All governments need to listen to health experts who have been sounding the alarm: 10 to 12 years as the threshold for criminal responsibility is too low,” she said.

“Some jurisdictions have made a step in the right direction. We praise the NT and the ACT especially, noting they have more to do, and the leadership from the Commonwealth. Friday’s meeting is an historic opportunity for all states and territories to commit to reforming our criminal justice system and protecting children from harm.

“Now is the time for governments across Australia to work together and show that they value the health and wellbeing of young Australians. Wrap-around social supports and community-supported alternatives can lead to better outcomes than putting our children in the criminal justice system.”

Update with meeting outcomes

The meeting failed to meet the expectations of the advocates for a nationally consistent commitment to raising the age.

A communique issued by the Council on 1 December said only that:

Participants:
(a) noted the positions and updates on minimum age of criminal responsibility reform in each jurisdiction.
(b) agreed to share future updates on minimum age of criminal responsibility reform to the Standing Council of Attorneys-General.
(c) noted the ACT has raised the minimum age of criminal responsibility to 12 and will further raise it to 14 in 2025.
(d) released the Age of Criminal Responsibility Working Group’s Report.
(e) noted officials will continue to work together to share lessons and consider cross-jurisdictional matters related to minimum age of criminal responsibility reform.
(f) noted the Justice Policy Partnership will continue to consider community-led approaches to support minimum age of criminal responsibility reform, in line with its priority to
achieve Targets 10 and 11 under the National Agreement on Closing the Gap.The communique issued by the Standing

In a statement on 4 December, the Royal Australasian College of Physicians (RACP) said the outcome of the meeting was “disappointing”. There was no agreement to raise the age of criminal responsibility, and there are no plans for continued efforts to find a national consensus.

Paediatrician and RACP president Dr Jacqueline Small said it was disappointing that the nation’s first law officers could not agree to put the wellbeing of very young children first, and that the outcome would result in a continued piecemeal, state-by-state situation, at best.

“Without a national consensus to raise the age to 14, we will continue to see health inequities, especially for Aboriginal and Torres Strait Islander children,” Small said.

The RACP now calls on all states and territories to pursue this vital reform in the absence of national consensus.

“We praise the NT and the ACT, which have raised the minimum age of criminal responsibility to 12, and we note the ACT’s commitment to raise the age to 14.

“We also welcome Victoria’s recent commitment to do the same.

“We urge other jurisdictions to show leadership and raise the age, even without a nationally agreed approach. The RACP stands ready to provide expert advice to all jurisdictions on how to prioritise child health and wellbeing.”

Meanwhile…

In a statement on 6 December, Amnesty International Australia welcomed the Tasmanian Government’s confirmation the state will raise the age of criminal responsibility from 10 to 14 years of age without exception in their Youth Justice Blueprint.

The Tasmanian Government today confirmed the decision in its response to the Commission of Inquiry into the Tasmanian Government’s responses to Child Sexual Abuse in Institutional Settings, accepting the recommendation of the inquiry that children under 14 should not be held in detention.

Tasmania is the first state or territory in Australia to raise the age of criminal responsibility to 14 years old without any exceptions or carve-outs, the statement said.

However, Amnesty raised concerns that by delaying the implementation of the reform to 2029, the Tasmanian Government will continue to arrest, charge, drag before the courts and incarcerate children under 14 for another six years. The Tasmanian Government has no acceptable justification for the delay to this urgent child safety reform, the statement said.

Palawa Elder and Amnesty International advisor Uncle Rodney Dillon said: “We welcome today’s announcement and wish to express our gratitude that the Tasmanian Government has listened to child safety experts, medical professionals, human rights groups and the Aboriginal and Torres Strait Islander community.

“This decision from the Tasmanian Government is a result of years of work from Aboriginal and Torres Strait Islander advocates and human rights groups including Amnesty International.

“Amnesty International Australia calls on the rest of the country to follow Tasmania and the ACT’s lead and to raise the age of criminal responsibility to 14. Prisons are not safe for any children, particularly children with complex trauma, disabilities and First Nations children. There is no practical, legally sensible or morally acceptable reason for Australia to continue its practice of incarcerating children under 14 years old.”

“Every month of delay will mean dozens of children under 14 years old to time in prison who otherwise could have been supported to change the direction of their lives through programmes in the community. Keeping children out of prison is urgent business. A six year delay to the implementation of this policy will cause unacceptable, unnecessary harm to countless vulnerable children.”

The Northern Territory and the Australian Capital Territory who raised the age of criminal responsibility to 12 earlier this year, with the ACT committing to raise the age to 14 years in the next two years. Victoria has also committed to raising the age to 12 in 2024 and to 14 by 2027.

In addition to raising the age of criminal responsibility to 14, Tasmania will increase the minimum age of detention to 16 years and create alternatives to detention for children aged 14 and 15 years and establish a range of community-based welfare and disability programs and services, tailored to meet the needs of children and young people under the age of 14 years.

Republished from Croakey Health Media on November 30, 2023.

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