Introduction by Croakey: There was an outpouring of love and support on social media on Wednesday as Australia marked National Aboriginal and Torres Strait Islander Children’s Day, celebrating the theme ‘Proud in Culture, Strong in Spirit’.
The event, which saw a groundswell of posts from Aboriginal and Torres Strait Islander individuals and groups, is held annually on August 4 and celebrates the strengths and culture of Indigenous children.
This year, it also refocused discussions around raising the age of criminal responsibility – a campaign gaining traction recently under the #MeAtTen hashtag – with the Victorian Greens leading a debate in the State’s parliament on the issue on Wednesday.
June Oscar, Aboriginal and Torres Strait Islander Social Justice Commissioner, said there had been little progress for Indigenous children over the past year and protecting their rights was an “urgent priority” for all governments on #NATSIChildrensDay.
But what chance is there of progress?
Croakey editor and journalist Marie McInerney surveyed Australia’s attorneys-general to gauge whether, after another year of deferred action on raising the age, we are any closer to meaningful change.
Marie McInerney writes:
Australian states and territories continue to reject demands for urgent action on raising the minimum age of criminality from 10 to 14 years, despite repeated calls from multiple health and justice organisations and the United Nations.
The issue has been on the table of the Meeting of Attorneys General (MAG) for more than two-and-a-half years, but their last formal comment came a year ago, when Australia’s top law officers said their Working Group still needed “further work to occur regarding the need for adequate processes and services for children who exhibit offending behaviour”.
Only the Australian Capital Territory has announced its intention to move in the near future, in the absence of national action.
Like many media outlets, Croakey has reported extensively on wide-ranging concerns about Australia’s failure to act on the issue, including from the Australian Medical Association, the Aboriginal Medical Services Alliance Northern Territory (AMSANT) and the Public Health Association of Australia (PHAA), Amnesty Australia and the Change the Record coalition.
They have warned that leaving the age of criminal responsibility “at the unacceptably low age of 10 years old” runs the risk of further traumatising already disadvantaged and vulnerable children instead of giving them the help and healthcare that they deserve.
Federal Attorney General Michaelia Cash has declined to show national leadership on the issue, with her office telling media that raising the age was “primarily an issue for states and territories”.
Last week, which marked another year of inaction from the MAG, Croakey sent a list of nine questions to state and territory Attorneys General, asking whether they were committed to reform, what were the barriers, and whether they would take responsibility for harms being caused to children from ongoing inaction (see our full list of questions below).
While a number expressed concern about the safety and wellbeing of children and young people, none committed to early action nor responded to all of the questions, including whether or not it was appropriate that 499 children aged between 10 and 13 were imprisoned last year.
Only Tasmania, South Australia and New South Wales have suggested they may act independently if there continues to be no national action.
None of the Attorneys General commented on whether failure to act is discriminatory and racist, OR a barrier to Australia’s efforts at Closing the Gap, on which the Prime Minister is expected to report tomorrow, given about two-thirds of those imprisoned are Aboriginal and Torres Strait Islander children.
South Australia’s Liberal Attorney General Vickie Chapman has sheeted home the blame for a lack of national consensus on Queensland’s Labor Government, which ruled out any action last year in the leadup to the state election and has introduced tough new penalties for young people that health and justice groups say are “short-sighted, discriminatory and ultimately dangerous”.
But Chapman also raised complications, saying the state “would fail our children if we simply changed the law and raised the criminal age of responsibility, without addressing alternate supervision and support for 10 to 14-year-olds”.
Alternative approaches
Those issues are like to be explored and addressed in a forthcoming ACT report, though they beg the question why jurisdictions don’t already have sufficient non-custodial systems and supports in place, much less therapeutic responses, for children aged 10-14 who are intersecting with the criminal justice system.
The ACT Government is expected in the coming weeks to release the independent review, led by Emeritus Professor Morag McArthur, in partnership with Aboriginal consultancy, Curijo, and the Australian National University, on what is needed to improve service system needs and pathways for children and young people under a raised minimum age.
“Children as young as 10 belong in primary school, not prison,” Attorney-General Shane Rattenbury said in June, releasing a Discussion Paper inviting expert and community input (submissions close tomorrow, 5 August, at midnight).
Explained Rattenbury:
When children are imprisoned, it sets the trajectory for the rest of their lives and increases the risk they will be involved in the adult criminal justice system as they grow up.
Australia’s minimum age of criminal responsibility of 10 is well and truly out of step with the rest of the world, and we have been chastised for this by the United Nations Committee on the Rights of the Child.
With the right supports in place, and a well-resourced youth sector, we can provide better alternatives to custody for children under 14.
We want to explore how responses outside the traditional criminal justice system could provide options for therapeutic care and accommodation for young people, embed restorative approaches and support victims.
Reducing children and young people’s interaction with the criminal justice system benefits all community members.
Meeting the needs of at-risk children and young people and their families earlier in their lives, will ultimately lead to lower levels of offending and recidivism. This is particularly important for Aboriginal and Torres Strait Islander communities given their over-representation in the justice system.”
Croakey’s questions to Attorneys General
Dear Attorney General,
As you will know it has been one year since the July 2020 Meeting of the Council of Attorneys-General (CAG) met to discuss raising the minimum age of criminal responsibility and only “noted the Working Group’s work to date and noted that the Working Group identified the need for further work to occur regarding the need for adequate processes and services for children who exhibit offending behaviour”.
Since then, apart from your March 2021 Communique stating that “this item will be further considered out-of-session”, there has been no news of any progress.
Croakey is planning to publish an article next Wednesday 4 August on progress and barriers on this issue. Could you please respond to the following questions by Monday COB:
- Does your office/government support raising the minimum age of criminal responsibility in Australia from 10 to 14? If so, why? If not, why not?
- When do you expect a decision to be made?
- Will you urge CAG to release its draft report on the issue, and the related submissions received from multiple groups, asoutlined here? If not, why not? If so, could you advise why they have not been released to date?
- What is your response to concerns from leading health and justice groups, including the Australian Medical Association, Public Health Association of Australia (PHAA), NATSILS, Amnesty Australia and the Human Rights Law Centre, that “leaving the age of criminal responsibility at the unacceptably low age of 10 years old, we run the risk of further traumatising already disadvantaged and vulnerable children instead of giving them the help and healthcare that they deserve”?
- What is your response to concerns that failure to act is discriminatory and racist, given that the majority of young people in custody under 14 years are Aboriginal and Torres Strait Islander children?
- Do you accept that failure to act on this issue is a barrier to Australian efforts to Close the Gap?
- Do you think it is appropriate that 499 children aged between 10 and 13 were imprisoned last year? (About two-thirds of them being Aboriginal or Torres Strait Islander children).
- Do you accept responsibility for this outcome? If not, who is responsible.
- Would you like to make any other comments on this issue?
Northern Territory Attorney-General Selena Uibo
“The Territory Labor Government has supported in principle the recommendation from the Royal Commission into the Protection and Detention of Children in the NT.
The age of criminal responsibility is being considered in the context of current youth justice reforms. The Northern Territory has complex issues and these all need to be addressed to see positive impact on young Territorians and their families and/or carers.
Raising the age of criminal responsibility will require a government decision. There is no set date for this decision.
At the national level, the Australian Meeting of Attorney-Generals is considering the policy implications of raising the age of criminal responsibility with the intention of creating national consistency across jurisdictions. No decision has been made to date.”
Queensland Attorney-General Shannon Fentiman
“The Palaszczuk Government has no plans to raise the age of criminal responsibility.
This issue was examined by Bob Atkinson in his review into youth justice and he recommended a national approach.
The Meeting of Attorneys-General has been looking at this issue, and we will continue to monitor these discussions.”
(See the Atkinson report here)
New South Wales Attorney General Mark Speakman
“The NSW Government is committed to using evidence-based interventions to reduce reoffending behaviour in young people and support them to turn their lives around in a positive way.
The goal of intervention is to make sure we don’t see the same young people returned to custody, rather, they’re supported to have healthy, productive and safe futures away from the criminal justice system.
This approach ultimately delivers better outcomes for our young people while also boosting community safety.
Youth Justice is actively engaged in diverting young people away from even short-term stays in custody and into appropriate community-based interventions through a range of programs, including:
- Youth on Track, the NSW Government’s flagship early intervention scheme which provides case management and behaviour and family interventions to young people who are at risk of long-term involvement in the criminal justice system.
- Bail Assistance Line (BAL) is an after-hours service which the NSW Police Force uses to source safe, alternative accommodation for young people unable to return to their previous residence.
- Youth Justice Conferences allow young people to confront their offending and address factors related to their offence.
- A Place to Go involves cross-coordination between Youth Justice, Community Services, Education, NSW Health, NSW Police Force and the Children’s Court to provide support to young people at risk of not meeting their bail by providing case coordination and dedicated short term transitional accommodation for these young people. A Place to Go is currently being piloted in the Nepean Police Area Command and the Parramatta Children’s Court.
The age of criminal responsibility is being considered at a national level by the Meeting of Attorneys-General.
NSW supports this work, noting that any reform in this area would need to be in the best interests of the community, with the safety of the community a key consideration. This includes the need for adequate processes and services for children who exhibit offending behaviour. The NSW Government will closely consider any recommendations of the Working Group which has been reviewing the issue.
The overrepresentation of Aboriginal people across the criminal justice system is (a) national tragedy, for which there is no simple or single solution.
Deep, continuing disadvantage in outcomes for Aboriginal people in health, housing, education and economic participation are among the primary causes.
The NSW Government is committed to working hand-in-hand with Aboriginal communities to address these systemic issues and building a fairer, more just society for Aboriginal people of all ages.
The NSW Government is a signatory to the ten-year National Agreement on Closing the Gap, developed jointly by all Australian governments and the Coalition of Peak Aboriginal and Torres Strait Islander Organisations. The agreement takes a holistic approach to the systemic change needed to improve justice, health, education and employment outcomes. We are committed to meeting the agreement’s targets, including reducing the rate of Aboriginal and Torres Strait Islander young people in detention by 30 percent by 2031.
On 24 June 2021, the NSW Government and the NSW Coalition of Aboriginal Peak Organisations (NSW CAPO) jointly launched the State’s first Implementation Plan under the National Agreement on Closing the Gap.
Additional Background
In NSW and all other Australian jurisdictions, the common law makes a rebuttable presumption that children aged between 10 and 14 years are incapable of forming the criminal intent to commit a crime, and are likely to lack the sufficient intellectual and moral development to appreciate the difference between right and wrong. This is known as the doli incapax presumption.
The average daily number of young people in Youth Justice custody in the 2019-20 financial year was the lowest it has been since 2002, with a reduction of 40 percent since 2009.
In 2020-21 the average daily number of young people in custody was 201, down from 251 in 2019-20. No 10 year olds were admitted to custody in NSW in 2020-21 and on very few days per year were there any 11 year olds in custody.”
Tasmanian Attorney General Elise Archer
Attributable to a Tasmanian Government spokesperson:
“Work is continuing nationally through the Meeting of Attorneys-General regarding the matter of raising the legal age of criminal responsibility.
While Tasmania would prefer a nationally consistent position on any reform in this area, the Attorney-General is continuing to consult with stakeholders as she further considers this issue for Tasmania.
The Tasmanian Government remains committed to ensuring the safety and wellbeing of children and young people, and is progressing a number of initiatives, including the development of a Youth Justice Blueprint, that will provide an overarching strategic direction for an integrated youth justice system in Tasmania.”
South Australian Attorney-General Vickie Chapman
“We would fail our children if we simply changed the law and raised the criminal age of responsibility, without addressing alternate supervision and support for 10 to 14-year-olds.
The feedback I have received from the Youth Court, SAPOL (South Australian Police) and the Commissioner for Victims Rights is that any change to the minimum age of criminal responsibility must be accompanied with better protections and support programs for that vulnerable cohort.
In the absence of national reform — following the Queensland Labor Government’s decision not to raise the age — this matter remains under consideration.
Protecting our children and keeping our vulnerable safe is, and always has been, a priority of this Government.
Additional Background
Currently in South Australia, children aged between 10 and 14 are presumed incapable of forming the mental intent to commit a crime.
However, in certain circumstances, the prosecution can argue the defendant was capable of understanding that their actions were seriously wrong in a criminal sense.
For the five years between 21 September 2015 to 20 September 2020, approximately two percent of the children prosecuted for an offence in South Australia received a custodial penalty in a youth training facility. The remainder were given a caution, ordered to participate in community service or drug or alcohol diversionary programs or sentenced to home detention.
The ACT has recently committed to increasing the age of criminal responsibility from 10 to 14 years, and a discussion paper is currently out for public consultation.
The consultation period ends in August.”
Victorian Attorney General Jaclyn Symes
“I welcome the important national conversation happening about whether the age of criminal responsibility should be raised — Victoria is continuing to participate in those discussions.
I continue to meet with a range of stakeholders to understand the issue and how we can support young people turn their lives around.
Of course we want to make sure that young people don’t come into contact with our justice system in the first place. That’s why we’re supporting young people and boosting community safety through several early intervention, diversion and support services.
Additional Background
The Government is continuing to implement the Youth Justice Strategic Plan 2020-2030 which implements recommendations from the Armytage-Ogloff Youth Justice Review.
This work is of particular importance to Aboriginal Victorians — who are over-represented in the youth justice system.
We are working with Aboriginal communities to reduce these rates and improve outcomes for Aboriginal youth, including through our Aboriginal Justice Agreement and upcoming Aboriginal Youth Justice Strategy which was supported with $11.8 million in the Victorian Budget 2020/21.
The Victorian Budget 2021/22 also allocated funding for the provision of an early intervention family service and specialist family practitioners to help keep Aboriginal children under 14 years of age out of the criminal justice system (Budget Paper 3, page 6, listed under the $31.2 million Preventing Aboriginal Deaths in Custody a component initiative).
As of 3 August 2021, there was one child aged between 10-13 in custody in Victoria. They do not identify as Aboriginal or Torres Strait Islander.”
Western Australian Attorney General John Quigley
“Discussions about raising the age of criminal responsibility are ongoing around Australia among the nation’s Attorneys-General.
Any changes would require resources and careful consideration to ensure that the small number of children who exhibit serious offending at a young age can be properly managed outside the criminal justice system.
The WA Government already diverts young people away from the criminal justice system where reasonable.
For example, the Olabud Doogethu Project in the Shire of Hall’s Creek – a project partly funded by the WA Government — has seen a 58 percent reduction in burglaries, 28 percent reduction in stealing offences and 35 percent reduction in stolen motor vehicles since its inception.”
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