Late last month state and territory Attorneys General gathered in a Council of Australian Governments (COAG) meeting in Perth and discussed lifting the minimum age of criminal responsibility across the country.
In last month's Attorneys General COAG meeting in Perth, governments decided to set up a working group tasked with studying the possibility of lifting the minimum age of criminal responsibility in Australia. The working group has up to twelve months to deliver its recommendations.
Currently, school age children as young as ten years old can be dragged in the justice system and locked up in Australia.
For many years, the UN, community organisations, NGOs, social justice as well as human rights advocacy groups including Amnesty International have been calling on Australian governments at all levels to adhere to the most widely accepted international standard.
The UN Committee on the Rights of the Child has criticised the low age in Australia, recommending an absolute minimum of 12 years, while arguing that 14 or 16 years is more appropriate.
Around the world, most countries have adopted the age of 14 as the lowest age when children can be held criminally responsible. China, Russia, Germany, Spain, Sierra Leone, Azerbaijan, Cambodia and Rwanda are some of the countries adhering to this norm.
Available data reveals that every year an average 600 children aged between 10 and 14 are entangled in the justice system and locked up in Australia. Indigenous children are overly represented in these statistics where they make up up to 87% in the 10 to 11-year old category.
Other studies and reports show most of the children in the justice system come from the most disadvantaged sections of the community. The majority of them are also victims of multiple traumas and suffer from various forms of physical and mental illnesses.
“We often see the justice system being used instead of a disability response, a health care education-based response"
On a state by state level, Queensland is the biggest jailer of children accounting for 25% of the overall number of kids behind bars in the country.
Seventy-one percent of the children facing the justice system in Victoria have experienced trauma, neglect or abuse; 65 percent have been suspended or expelled from school and 53 percent present with mental health issues.
Belinda Lowe, an Amnesty International human rights campaigner, welcomed the COAG decision to finally act on the longstanding request to lift the age of criminal responsibility in Australia. However, the human rights campaigner slams the creation of a working group saying it is an unnecessary bureaucratic step.
“The Royal Commission into the Protection and Detention of Children in the Northern Territory, doctors, paediatricians, psychologists, Human Rights advocates have recommended to lift the age of criminal responsibility to 14. We do not need another report," Belinda Lowe says.
The Amnesty campaigner argues that there are already numerous instruments and reports from which to draw a decision. “We have international instruments. We’ve been signatories to the Convention on the Protection of the Child since 1990. The Convention recommends that the minimum age for criminal responsibility should be raised to at least the age of 14."
"It is appalling that we’ve signed this Convention. Yet, there is a glaring hole. We haven’t put the Convention into practice. Attorneys General have got the evidence. There is no need for them to wait any longer,” Belinda Lowe says.
The WA Attorney General, John Quigley, is credited with moving the motion to discuss the minimum age of criminal responsibility in a COAG meeting and reigniting a national dialog.
"Kids cannot foresee the consequences of any action and cannot fully understand the criminal nature of their behaviour."
States and territories including the ACT and Queensland had already started their own dialog around the issue. A Queensland government-commissioned report known as the Bob Atkinson report was published last June.
In this report, Bob Atkinson AO, APM recommends lifting the minimum age of criminal responsibility to 12 years only. He also recommends introducing diversion measures for children as young as 8 years old who commit criminal offences.
Following last month's COAG meeting, the Queensland government announced it will share the Atkinson report's findings with the working group as Queensland's contribution to the national dialogue. Queensland will only change its legislation in lockstep with the other states.
The main issue raised by NGOs, medical experts and legislators is whether young children involved in the justice system have the capacity to understand the consequences of their actions.
Medical experts say that children’s brains are still developing, especially the parts that regulate judgement, decision-making and impulse control. This means that kids cannot foresee the consequences of any action and cannot fully understand the criminal nature of their behaviour.
Belinda Lowe agrees with the experts' conclusions further arguing that most of the crimes committed by young children are property-related crimes and, most often, these children don’t understand the ramifications of their actions and shouldn’t be in detention in the first place.
The Amnesty campaigner cites a recent study at the Banksia Hill youth detention centre in WA showing that 9 out of 10 children locked up in this facility suffer from severe neuro-cognitive disability.
“You would expect to see similar statistics across the rest of the country. It is clear that prison is not the right place for these children,” Belinda Lowe says.
The campaigner also stresses that often the justice system gets involved in situations where a disability response, a health care or education-based response would be more appropriate.
"The government should stop locking up children and make sure that they focus on the prevention side and provide these kids with the support that they need early on so they can lead the lives that they deserve.”
According to one of Australia’s leading criminologists, Australia should raise the minimum age of criminal responsibility to at least 14 to reduce the risk of children embarking on life-long involvement with the criminal justice system.
