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Attorneys-General under fire, again, for failing children and ignoring medical advice

*** This article was updated on 18 November to include additional commentary ***

Last year, the nation’s Attorneys-General drew widespread condemnation for their failure to act on advice to raise the age at which children can be imprisoned from 10 to 14 years. The Public Health Association of Australia and others described their inaction as an example of racial discrimination, as it disproportionately harms Aboriginal and Torres Strait Islander children.

At the time, Elizabeth Elliott, Professor of Paediatrics and Child Health at the University of Sydney, critiqued a suggestion from the Attorneys-General that there was not enough information on the alternatives to imprisonment for children aged 10-14. She said that programs to address inequity and disadvantage and target social determinants would decrease the numbers of children involved in the justice system.

Keeping the age of criminal responsibility at 10 was an assault on the health and wellbeing of some of Australia’s most disadvantaged children, she wrote at Croakey.

So did the Attorneys-General therefore prioritise these concerns when they met on 12 November by videoconference?

After the meeting, a four-page communiqué was issued, addressing various topics. The issue of raising the age was addressed only cursorily in its final paragraph:

State Attorneys-General supported development of a proposal to increase the minimum age of criminal responsibility from 10 to 12, including with regard to any carve outs, timing and discussion of implementation requirements. The Northern Territory has committed to raising the age to 12, and will continue to work on reforms including adequate and effective diversion programs and services. The Australian Capital Territory has also committed to raising the age, and is working on its own reforms.”

Yet again, the Attorneys General have come under widespread fire for failing to address such a critical issue, especially when the Closing the Gap agreement now includes a focus on reducing the detention and incarceration rates of Aboriginal and Torres Strait Islander children and people.

Indigenous doctors speak out

The Australian Indigenous Doctors Association (AIDA) joined the Australian Medical Association (AMA), and other health and legal experts in sounding the alarm.

“Raising the age of criminal responsibility is essential in addressing the over-representation of Aboriginal and Torres Strait Islander people in the legal system,” Dr Simone Raye, Vice-President of AIDA, said in a statement.

“Overwhelming evidence suggests that locking children up does not keep the community safe, but only serves to further entrench children and young people in disadvantage and give them a poor start in life.

“Raising the age from 10 to 12 does nothing to improve the mental and physical wellbeing of these children – many whom would still be in primary school, or just starting high school. Investment should instead be targeted towards giving children the help they need to lead healthy and happy lives in their homes, schools and communities.”

AIDA supports the national Raise the Age alliance, which calls on state, territory, and Commonwealth governments to raise the minimum age of criminal responsibility to at least 14.

AIDA congratulated the ACT Attorney General and the ACT Government for its longstanding commitment to raising the age of criminal responsibility to 14 years – the only state or territory in Australia to do so. AIDA urges governments to heed not only medical and international advice, but the advice of First Nations organisations to reduce the overincarceration of Aboriginal and Torres Strait Islander people.

“If we don’t act now, we fear nothing will be done to end the criminalisation of disadvantaged children and young people in Australia. If we are to see meaningful reform in raising the age, we must make sure it is done right, so that we secure the futures of our Aboriginal and Torres Strait Islander children.”

Expert advice ignored

An AMA statement said the AGs meeting was a missed opportunity to make real progress in stopping harms to children.

It would result in more children being locked up and ignores the expert medical, legal and social advice on the real harm of the current laws, which in reality make kids more likely to reoffend.

Evidence shows the younger a child is at first contact with the justice system, the higher the rate of recidivism and children in contact with the criminal justice system at a young age are less likely to complete their education, find employment and are more likely to die an early death.

Raising the age of criminal responsibility only to 12 will do little to lower the number of children locked away behind bars. According to AIHW data, 456 out of the 499 children under 14 in prison in 2019-20 were aged 12-13 years old.

In a 2020 submission to the then Council of Attorneys-General – Age of Criminal Responsibility Working Group Review –  the AMA recommended an exploration of existing and proposed alternative programs to incarceration in each Australian jurisdiction and in Japan and European countries which do not incarcerate children under the age of 14 years.

The AMA said that the criminalisation of children in Australia disproportionately impacts Aboriginal and Torres Strait Islander children, and that we have a particular responsibility to this group of children, who may be suffering intergenerational trauma, to keep them out of prison and to explore culturally appropriate alternative programs.

Under the current legislative settings, Aboriginal and Torres Strait Islander young people aged between 10 – 17 are 38 times as likely to be in detention as non-Indigenous young people in some Australian states, while in the Northern Territory, at least 94 per cent juvenile detainees are Aboriginal or Torres Strait Islanders.

The Australian Council of Social Service (ACOSS) also condemned the decision of the Meeting of Attorneys-General.

ACOSS CEO Dr Cassandra Goldie said: “It is baffling that our leading law-makers have ignored the medical evidence and the results of multiple inquiries recommending that the minimum age for criminal responsibility be at least 14 years old.

“Australia needs to follow the lead of the ACT and align with clear UN recommendations to raise the age of criminal responsibility to 14 years old.

“All the evidence tells us that children belong in school and with their families and communities, not in prison cells. Early and alternative supports, and resourced and appropriate services – in youth homelessness, in child protection, in mental health – for children and their families will deliver better outcomes for the child, their family and the wider community.”

The Public Health Association of Australia also criticised the AG’s announcement as “a nothing policy” and joined other organisations in urging people to sign this petition calling for the age of criminal responsibility to be raised to at least 14.

Address the youth justice emergency

The Partnership for Justice in Health said the Attorneys-General decision “is another empty commitment and delay at the expense of the health and wellbeing of children”.

“There is a tangible human and economic cost to every delay of raising the age of criminal responsibility to 14,” the P4JH said in a statement.

“Youth offending is the result of government failures, at all levels, to create and maintain effective early intervention and support systems that promote healthy childhoods and education. We cannot continue expecting young people to bear the burden of the failures of policy makers.

“As a partnership formed to address the impacts of racism within the health and justice systems – P4JH is acutely aware that Aboriginal and Torres Strait Islander children are grossly overrepresented in youth incarceration rates. We also know that our children are targeted by police, based on the colour of their skin. This is especially a concern when we consider the quality of health care and social and emotional wellbeing support available for children that are incarcerated and inevitably, being further traumatised in the process.

“The United Nations Committee on the Rights of the Child, the Law Council of Australia and the Australian Medical Council have, along with countless other experts, called for the age of criminal responsibility to be raised to at least 14 years old and have noted the significant health impacts of incarceration on the growth and development of children. Further, the health advice recognises that young people have not developed the neurological functioning to even form criminal intention and are medically incapable of fully comprehending the consequences of their actions.”

The P4JH called on Attorney Generals to honour the integrity of health expertise.

“Nationally, we have trusted our health experts to get us through the COVID 19 pandemic and, equally so, we must listen to them as they insist that imprisoning children under 14 years old is causing irreparable harm and devastation in the lives of our future generations,” said the statement.

P4JH commended the ACT on remaining steadfast in its commitment to raise the age of criminal responsibility to 14, and said other jurisdictions must also #RaisetheAge to at least 14 years old with no exceptions or carve outs – “it is the only acceptable first step in addressing the youth justice emergency in this country”.

The P4JH said: “Join us in calling for an end to this racist legislation so all children can live and thrive in safe environments.”

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Rob Hulls is a former Victorian Attorney-General