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Raise age of criminal responsibility – the expert advice given to Australian governments two years ago

The nation’s Attorneys-General have released a draft report that in 2020 recommended Commonwealth, State and Territory governments raise the minimum age of criminal responsibility to 14 years of age.

The move followed calls from Aboriginal and Torres Strait Islander, justice and medical organisations for the report to be released, at a time when governments face growing pressure to stop traumatising children who need care and support rather than punitive and damaging incarceration.

The Change the Record coalition welcomed the release as a win for the #RaisetheAge campaign.

A communiqué released after a meeting today of the Standing Council of Attorneys-General said the report was originally prepared for the then Council of Attorneys-General (CAG) but was never agreed by all jurisdictions at officer level nor provided to CAG for consideration.

The communiqué said a reconvened Age of Criminal Responsibility Working Group, now co-chaired by Western Australia and the Commonwealth, would undertake further work regarding the need for adequate supports and services for children who exhibit offending behaviour.

Report’s findings

The report found:

• Australia’s minimum age of criminal responsibility has been criticised for being too low by the United Nations Committee on the Rights of the Child.

• Australia’s minimum age of criminal responsibility is one of the lowest among OECD member countries.

• The evidence regarding the psychological, cognitive and neurological development of children indicates that a child under the age of 14 years is unlikely to understand the impact of their actions or to have the required maturity for criminal responsibility.

• Detention may not be an effective deterrent for a child because of their immature brain development and cognitive functions and lack of capacity to understand the consequences of their actions.

• Complex or cumulative trauma in early childhood can disrupt brain development and the effects may manifest as risk factors for future contact with the justice system. Most children in the youth justice system have experienced childhood trauma.

• Children and young people who engage with the criminal justice system have comparatively higher rates of childhood neglect and trauma (including physical, psychological and sexual abuse), familial instability and substance abuse, and experience in the child protection and out-of-home care systems, as well as lower levels of education. Placing a child in detention can disrupt normal brain development and compound pre-existing trauma. Detention creates life-long negative outcomes.

• Children, particularly Indigenous children, in the youth justice system are more likely to come from disadvantaged backgrounds, have experienced trauma, or have a disability or neurodevelopmental impairment and consequently have complex needs.

• An educational, medical, psychological, social and cultural response that deals with the underlying causes of child and youth offending, rather than a purely justice-based approach, can lead to better outcomes for children.

• 10 to 13 year olds make up only seven percent of children under supervision in Australia and almost never commit the most serious offences. During 2018-19, there were 567 children aged under 14 years in unsentenced detention and 34 in sentenced detention.

• Indigenous children and young people are vastly over-represented in the youth justice system.

• Early contact with the justice system is a key predictor of recidivism: 85 per cent of young people who were supervised between the ages of 10 and 14 years returned to, or continued under, supervision when they were aged 15 to 17 years.

Recommendations

Subject to some caveats, the report recommended the Commonwealth, State and Territory governments should raise the minimum age of criminal responsibility to 14 years of age, without exception.

It said alternative options for reform include raising the minimum age of criminal responsibility to 14 with exceptions for serious crimes, or raising the minimum age of criminal responsibility to 12 and the minimum age of detention to 14 (with exceptions for serious offences).

Prior to implementing a change to the minimum age, the report said following matters should be considered by each jurisdiction:

  • A gap analysis be undertaken with regard to the current prevention, early intervention and diversionary frameworks in the context of a potential change to the minimum age of criminal responsibility.
  • Broad consultation be commenced, including with government agencies and community members who were not part of the Working Group’s consultation.
  • Current family and community responses/programs be strengthened, ensuring that programs are evidence-based, culturally safe, trauma informed and, where appropriate, community-led.
  • Places of safety’ be established or ensured. Each government review, develop and expand safe accommodation for children that is culturally appropriate and takes into account the need for connection with family and community.
  • The police or other authorities be given the power to refer a child and/or caregivers to appropriate agencies, diversionary programs and services where the authorities become aware that the child is under the age of criminal responsibility and is displaying risks or needs in their behaviour. This recommendation relates to circumstances where, if the child had been over the age of criminal responsibility, they would have been reasonably suspected to have committed a criminal offence.
  • Consideration be given as to whether there should be a minimum age of detention for children above the minimum age of criminal responsibility, such as 16 years of age, with exceptions for serious offences.

The Working Group that prepared the report received 93 public submissions from external stakeholders, with the majority calling for the age to be raised to 14 years or higher.

However, the report said not all jurisdictions supported raising the minimum age of criminal responsibility to 14 years, and the Commonwealth Attorney General’s Department requested that the Working Group include the following statement:

The Commonwealth does not endorse the report. In the Commonwealth’s view, the report does not give sufficient consideration to broader implications of raising the minimum age of criminal responsibility for the justice system and community safety. The Commonwealth considers the findings and recommendations are not properly balanced and does not agree with all of them.”

The report says: “However, the majority of the Working Group does not agree with the Commonwealth, and, satisfied that the report comprehensively reflects the evidence reviewed and the consultation undertaken, presents below its preferred options for CAG to consider.”

The Commonwealth Attorney General in 2020 was Christian Porter.

Read the report here.


See Croakey’s archive of articles on justice and health

 

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