Almost 50 groups representing lawyers, doctors and advocates have asked Australia’s attorneys-general to raise the age of criminal responsibility, in a renewed push to stop children as young as 10 being sent to prison.
Forty-eight parties including the Australian Medical Association, Murdoch Children’s Research Institute, Law Society of NSW and multiple Aboriginal legal centres want laws changed so children cannot be sent to jail before they turn 14. They argue imprisoning children increases their likelihood of returning to jail in future, severely stunts their development and disproportionately affects Indigenous Australians.
Victorian Attorney-General Jaclyn Symes is among leaders being urged to raise the age of criminal responsibility.Credit:Eddie Jim
It comes as internal pressure grows on the Andrews government to raise the age of criminal responsibility to 14, with three Labor MPs recently speaking out in Parliament, in a rare sign of public dissent.
Victoria Police and the police union said they saw no need to raise the age, arguing it was important for police to have options in serious cases and that 10-year-olds were not ending up in jail in Victoria.
Children aged 10 and older can be imprisoned in every state and territory, a setting the council of attorneys-general started reviewing in late 2018 in response to concerns Australia lags many countries, with the most common age of criminality internationally being 14.
Last July the council deferred a decision by at least one year because it said more work needed to be done on alternative ways to deal with young offenders, and at the latest meeting in March it agreed the issue would be “further considered out of session”.
In the absence of a national consensus, states such as Victoria are considering the legal and political implications of a significant shift on which they would probably have to move unilaterally.
The Andrews government would also come in for criticism from the Coalition. Shadow attorney-general Ed O’Donohue told The Age his party would be “very cautious, noting there are currently accused on trial for murder who are under the age of 14” and it wanted more done to address the underlying causes of crime.
Only the Australian Capital Territory has begun work on changing its laws. The Queensland government last year ruled out raising the age in the foreseeable future as part of its successful tough-on-crime election campaign.
About 600 children aged 10 to 13 were in prison in 2018-19, according to the federal government, 60 per cent of whom were Indigenous. Indigenous Australians make up 3 per cent of the country’s population, while there have been seven Indigenous deaths in custody so far this year.
Labor MP for Broadmeadows Frank McGuire has led calls within the Victorian government to initiate change in recent months.
Labor MPs Sonja Terpstra, Dustin Halse and Frank McGuire are pushing for the Victorian government to raise the age of criminal responsibility to 14.Credit:Composite image
Speaking on a bill to decriminalise public drunkenness in February, he said the deaths of Aboriginal people in police custody were the “chilling, fatal echo of history”.
“Children as young as 10 are … being locked up. This disproportionately impacts Indigenous children,” said Mr McGuire, who is also the parliamentary secretary for crime prevention.
“Their childhoods are stolen. We must respond by raising the age of legal criminal responsibility from 10 to 14. A child as young as 10 should never find themselves in jail.”
In a parliamentary speech first-term Ringwood MP Dustin Halse commended Mr McGuire’s comments and urged his colleagues to “increasingly seek to address” the issue of young people being sent to prison.
Eastern Metropolitan upper house MP Sonja Terpstra similarly warned governments could not “afford to delay” a decision to keep children out of jails.
Victorian police union secretary Wayne Gatt says current methods to rehabilitate young criminals are sufficient.Credit:Paul Rovere
Police Association Victoria secretary Wayne Gatt told The Age he was not in favour of a shift, which “requires a uniform national decision, not a state-by-state one”.
“We don’t see a need to raise the age, because the issue is often presented in the context of preventing 10-year-olds from going to jail. As far as we are aware, there are no 10-year-olds in jail in Victoria,” he said.
“Layers of diversion and caution programs operate to intercept young people before they even enter the court process. And once they do, the Children’s Court Act de-emphasises punishment and supports rehabilitation as the highest priority.”
A spokeswoman for Victoria Police said it supported diversionary methods, rather than raising the age, because it was “important that police have the ability to arrest and hold young offenders to account who have committed serious crimes, including crimes against the person”.
No government has acted since a draft report commissioned by Australia’s attorneys-general, leaked to media last month, recommended all governments raise the age of criminal responsibility to 14.
The report suggested two alternatives: lifting the minimum age to 12 or raising it to 14 with carve-outs for serious crimes such as murder, terrorism and sexual assault, as considered by NSW Attorney-General Mark Speakman last July.
“There is understandable community concern when, for example, 13-year-olds in far north Queensland are alleged to have raped a minor, and understandable community concern that kids may feel they can get away with things if there isn’t some criminal sanction attached,” he said.
Other concerns from state governments include the possibility of adults manipulating children aged under 14 to commit crimes on their behalf.
A Victorian government spokeswoman said the state was implementing the Youth Justice Strategic Plan 2020-2030, which included recommendations from the Armytage-Ogloff Youth Justice Review designed to reduce offending, as well as tailoring extra support for Aboriginal people who are overrepresented in the criminal justice system.
“There is a national conversation happening about whether the age of criminal responsibility should be raised – Victoria is continuing to participate in those discussions and will consider the recommendations that emerge from that process,” the spokeswoman said.
“In the meantime, we’re continuing to tackle the root causes of youth offending, because the best outcome for young people is to avoid contact with the justice system in the first place.”
Frustrated by the lack of progress nationwide, 48 groups – co-ordinated by advocacy group Change the Record – released their submissions on raising the age to the council of attorneys-general on Wednesday.
Of those, 46 say Australia’s laws are contributing to the over-representation of Indigenous children in prison and 43 state the laws breach international human rights law or standards.
The United Nations encouraged governments in September 2019 to “take note of recent scientific findings and to increase their minimum age accordingly, to at least 14 years of age”.
The number of children incarcerated in Victoria is relatively low: as of Sunday all three under-14s in prison were aged 13 and on remand, according to the state government.
Yet the Murdoch Children’s Research Institute wrote in its submission that the impact on each individual child was significant. Adolescents who have been in detention die at a rate five to 41 times higher than their peers, it wrote, most often from drug overdoses, suicide, injury or violence.
“Children and adolescents in youth justice detention have complex health needs and require intensive support. Detention damages these children.”
Medical, legal and advocacy groups favour “justice reinvestment” in place of imprisoning children aged 10 to 13. They argue the money saved from not sending children to jail could be spent on education and child welfare services such as out-of-home care, school-based interventions and community health programs.
Victorian Attorney-General Jaclyn Symes is leading negotiations on raising the age and on Friday Indigenous Affairs Minister Gabrielle Williams said there was a “significant body of work” under way on programs aimed at diverting children from crime.
“In terms of the broader discussion about raising the age, let’s see what comes out of those national discussions as led by Jaclyn Symes,” Ms Williams said when asked if she was in favour of the change.
Speaking directly after Ms Williams, the co-chairs of Victoria’s First Peoples’ Assembly, Marcus Stewart and Geraldine Atkinson, both said they wanted immediate reform.
“It should have been done yesterday,” Mr Stewart said. “I think we can demonstrate some leadership on it.”
Cheryl Axleby, co-chair of Change the Record.
Cheryl Axleby, co-chair of Change the Record, criticised the country’s attorneys-general for rejecting her team’s requests to access the 88 submissions on raising the age under freedom of information laws.
“Dozens and dozens of submissions made by legal, health and youth experts have been hidden and ignored by attorneys-general for over a year, as they have sat and done nothing while our children languish in prisons,” she said.
A spokesman for federal Attorney-General Michaelia Cash said raising the age was “primarily an issue for states and territories”.
“Work is under way to progress this matter out of session, with a time frame yet to be settled,” he said.
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