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Australia's breach of international standards on criminal responsibility age is 'taking its toll' on Indigenous children, says Amnesty International Australia.
Andrea Booth

11 Feb 2016 - 3:20 PM  UPDATED 16 Feb 2016 - 10:25 AM

"These kids have lost their culture, it's been destroyed," Nyoongar elder Ben Taylor told NITV News. "Our culture has been destroyed by colonisation and the stolen generation."

Mr Taylor is referring to an 11-year-old who has been charged with the murder of a 26-year-old man. The child is the youngest known person in Australia's recorded history to have been charged with murder.

The child was charged along with three other people after a clash between groups at 3.30am on January 27 in Perth, Western Australia.

Mr Taylor says children are turning to alcohol and drugs in response to losing their culture.

"There are scars, they're scars of the White Australia policy, of being torn from your mother’s arms," the 76-year-old says.

Call to raise the age of criminal responsibility

Ten is the age that criminal age of responsibility begins in all jurisdictions in Australia.

But the UN Committee on the Rights of the Child says the age should be 12.

In a UN report in 2007 it advised that, "a minimum age of criminal responsibility below the age of 12 years is considered by the committee not to be internationally acceptable".

Australia's criminal responsibility legislation holds a grey area. While the criminal responsibility age starts at 10, the law contains a rebuttable presumption known as doli incapax that rules a child between age 10 and 14 is incapable of committing a criminal act. 

Amnesty International Australia told NITV News the age of criminal responsibility should rise from age 10 to 12, in line with brain development research.

"Australia is out of line with international standards in holding children as young as 10 criminally responsible for their actions," it says.

Amnesty says this particular case is "terribly sad", and "devastating for the victim's loved ones".

But even "in a case as difficult as this", it believes international standards must be upheld.

"The case of the 11-year-old boy in Western Australia is no exception. As a child under the age of 12 he should not be held criminally responsible, but Australia's out-of-step laws dictate that he will be."

This is not the first time Amnesty has called for the age to be raised around criminal responsibility. In August 2015, the organisation along with other rights and legal bodies, wrote an open letter to the Attorneys-general in Australia calling for the age to reflect the international standards.

Western Australia Attorney-General Michael Mischin told NITV News the state government does not intend to raise the age of criminal responsibility.

"However, a child under the age of 14 years is not criminally responsible unless it can be proved beyond reasonable doubt that at the time of the alleged offence the accused child had the capacity to know that he or she ought not do the act or make the omission giving rise to the offence," Mr Mischin said.

"In short, the law already takes into account the accused child's level of maturity and intellectual development." 

How a child's brain develops

The brain's prefrontal cortex, which governs skills such as impulse control and decision-making doesn't develop properly until adolescence, say Waienberger, Giedd and Elevag in their publication The Adolescent Brain: A work in progress.

Criminology and child offence researchers Gregor Urbas and Raymond Arthur put forward the case that children under the age of 14 do not fully understand the severity of their actions or have full control of their behaviour.

But child health expert Fiona Stanley AC told NITV News that while the ability to know right from wrong is still developing and varies in children, "it's very very rare they will kill another." 

She says a child's brain development "hugely depends" on the environment a child is exposed to in utero or in life.

"So if a child is born into a warm and loving environment, breast fed, all that lovely contact and sense of being nurtured and loved, then all of the right brain hormones and the brain chemicals, as well as those neurons, will migrate to the right place and function effectively," she says.

Conversely, if children are exposed to a high degree of stress such as witnessing partner violence, being subjected to physical or sexual abuse, or substance abuse in utero and after birth, that "can actually switch off the genes that are meant to be important for brain development."

She provided the hypothetical example of the implications of covering a child's eye for six months from birth.

"That child would never see from that eye because the brain would not have developed in that visual cortex where the seeing centre is.

"The only interpretation that I could give for [the 11-year-old] is that there has been serious interference with brain development during their life."

Ms Stanley says Australia must invest in more effective ways to protect children, such as early childhood care.

"Surely you can't just incarcerate them without looking after them," she says. "There has got to be some other way in which we take these children into care and look after them and love them and nurture them and provide care for them.

"And then at least they can develop to the extent of the abilities that they have, and I think that's the most humane thing you could do as a society."

Indigenous young people and the law

Amnesty says Australia's "breaching" of international standards around criminal responsibility is "taking its toll on Indigenous children".

Indigenous children make up less than 6 per cent of the population of 10-17 year-olds, but comprise 58 per cent of young Australians in detention, according to data from the rights organisation.

Western Australia Aboriginal Legal Services CEO Dennis Eggington says states and territories or the Commonwealth should consider their "repugnancy" in their adoption of international standards around the rights of children.

Australian law has adopted Article 3 of the UN Convention on the Rights of child that mandates "the best interests of the child shall be a primary consideration". 

"One of the only international conventions that we have adopted into domestic law is the rights of the child in family law," he says.

But he questions why Australia has adopted this principle and not another.

"Australia has to adopt international agenda principles to develop a proper relationship with its Indigenous peoples," he says.

Further, Mr Eggington suggests considering the age of criminal culpability is in the best interests of the child.

“It's fair to say that our community suffer much more levels of trauma and life changing events, our community suffer much more levels and incidences of critical events, and are growing up with much more trauma in the lives."

John McBain, Indigenous justice organisation ANTaR Western Australia's chairperson and Campaigns and Advocacy Committee member, says unrest in Australia's Indigenous communities will continue until wider society begins respecting them and addresses its hypocrisy.

"I'm not justifying car theft or being on the street at 1.00am in the morning stabbing people," he says.

"[But] how can we explain to young Aboriginal kids that you can’t steal a car or something when our society says it's OK to steal a whole country."

Mr McBain says a child should be held responsible for their actions, but asks, "should a child be judged as a criminal when they're not even an adult? Well that’s really sad."

"Should we be focused on getting them back on the right track?