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Why we need to raise the minimum age of criminal responsibility

The campaign to raise the age of criminal responsibility across Australia is gaining momentum, but what is currently happening and what does this all mean for human rights and Indigenous rights?

What is the age of criminal responsibility?

The age of criminal responsibility is the age in which a child is considered by law to have understood that their actions were wrong and can face criminal charges. All Australian states and territories have this age set at only 10 years old. This means that across Australia, police have the power to arrest, strip-search and imprison children who are only 10 – that’s typically a child in year three or four at primary school. Many Australians are actually unaware of the current age a child can be held criminally responsible for their actions; two thirds of Australians believe it to be 14

Australia’s current treatment of children under criminal law violates their human rights under the Convention of the Rights of the Child. It also disproportionately impacts Indigenous kids, perpetuating cycles of racism and reoffending. Australia has also faced repeated criticism from the Committee on the Elimination of Racial Discrimination for not raising the age. 

Why is this an Indigenous issue? 

Indigenous children are the most vulnerable and disadvantaged in the criminal justice system, making up the vast majority of imprisoned children. In 2018-2019, 60% of all imprisoned children were Indigenous. Of all 10 year olds imprisoned in 2020, 80% were Indigenous. These kids face a system which is already geared against them; decades of racism and bias woven into the fabric of the criminal justice system. As a result, Indigenous children are locked up at 18 times the rate of non-indigenous children. The age of criminal responsibility being set so low creates a cycle of imprisonment and reoffending amongst Indigenous children who are already disproportionately represented in the criminal justice system. 

Doesn’t that mean kids will just not have to face consequences for their actions? 

In short, no. There is no suggestion, especially not from advocates of raising the age, that when a child does something wrong, that they don’t face consequences for their actions. But prison is not the right intervention. 

Intervention and diversion programs are an alternative that instead focus on rehabilitation and reintegration, while also making sure children understand the consequences and harm of their actions. The Royal Commission into the Protection and Detention of Children in the Northern Territory demonstrated that the most effective programs to target the underlying intergenerational trauma faced by Indigenous children are intervention and diversion programs run by Indigenous organisations and leaders. These programs are able to divert kids from the criminal justice system by addressing the root causes of criminal behaviour and focus on rehabilitation to prevent lifelong interactions with the law. 

Why do we need to raise the age from 10-14?

Beyond Federal, State and Territory governments’ obligations under international law and ethical responsibility towards these kids, there is much evidence which highlights the urgent need for reform. There are documented and extensive adverse impacts of imprisoning children at a young age. Suffering great emotional harm at such a formative age can inflict lasting damage upon the wellbeing of a child. These children are far less likely to complete their education or find employment. Medical professionals also emphasise that children of such a young age do not have the capacity to fully understand the consequences and severity of their actions. All these factors result in a shocking 94% of children imprisoned between the ages of 10 to 12  receiving another prison sentence before they even reach adulthood. Locking kids up does not reduce the likelihood to offend. Instead it steers them on a path towards reoffending.

What is being done to change this?

The Raise the Age campaign is a coordinated effort by Australian organisations all working to lift the criminal age of responsibility to the internationally accepted minimum of 14. Amnesty International Australia is one of the organisations actively campaigning to raise the age. 

In December 2019, the Council of the Attorneys-General (CAG) established a review into this issue. However, this review has been anything but transparent. The results of this review were first deferred in July of 2020. Now CAG has been accused of hiding submissions which are supportive of reform. Despite receiving more than 90 submissions, CAG has not released a single report, despite multiple formal requests from the Senate. These actions follow “two-and-a-half years of inaction and delay” by CAG and the federal and state governments, during which time approximately 600 children under 14 remain behind bars. In response, 48 organisations publicly released their submissions, which all detailed the importance of raising the age and the dangers of early entry into the criminal system. 96% of these organisations highlighted the overrepresentation of Indigenous children as a predominant concern in their advocacy for lifting the age. 

Amnesty International Australia has called on the Australian government to meet its obligations under international law and put the needs of the child first by raising the age of criminal responsibility from 10 to 14 years. The federal government has shirked its duty to these children by asserting that it is a state issue. However, the Attorney General has the capacity to enact meaningful change and prevent many Indigenous children from forming lifelong ties to the criminal justice system. CAG should accept the evidence and submissions provided by these organisations and raise the age nationally.

The age of criminal responsibility does not prioritise ‘safety’ or ‘justice’, rather it risks the wellbeing and future of young children. 

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Australia: stop locking up 10 year-olds in prison