In Australia, children as young as ten can be held criminally responsible if they break the laws. Recently, all of the State Attorneys-General agreed to consider raising this age as Australia faces increasing international pressure to keep children and teens out of prison.
Last week Greens Member of the Legislative Council (MLC) David Shoebridge went one step further. He introduced a bill to NSW Parliament which proposes lifting the age of criminal responsibility to 14 years as well as requiring alternatives to prison for offenders under 16 years of age.
Children as young as 10 can be prosecuted and imprisoned
Currently in New South Wales, children as young as 10 years old can be held accountable for some crimes they commit, then prosecuted and imprisoned. Having said that, there is legal doctrine, case law and legislation that reduces the culpability of children between 10 -14, and affects the types of sentences they face (the penalties, bonds, detention etc), but criminal culpability of juveniles (and how it applies to young offenders) requires specific situational advice. Earlier this year the ACT paved the way to become the first jurisdiction in Australia to raise the age of criminal responsibility to 14 years, which is the standard recommended by the United Nations.
Setting criminal culpability at the age of 10 actually violates their human rights under the Convention of the Rights of the Child. Human rights, civil liberties and child protection advocates have long lobbied the Australian federal and state governments for change, with no success.
Why we shouldn’t lock children up
There is a growing body of research which shows that when children and young teens have early contact with the criminal justice system, it often severely affects their future, essentially setting them up for a life of continued offending, spending time in and out of jail.
Other research shows that young people don’t have fully developed cognitive functions, including judgement and impulse control, which impacts the decisions they make, and means they don’t always understand the risks they take, nor are they able to fully assess the consequences of their actions, prior to acting.
The majority of children and young people who commit serious violent crimes have suffered significant trauma themselves and need the right kind of help, so they can heal.
Last year almost 500 children aged between 10 and 13 were sent to jail across Australia, and it is often the most vulnerable and disadvantaged children who come into contact with the justice system at a young age. About two thirds of them are Aboriginal or Torres Strait Islanders, despite Indigenous people making up only three per cent of Australia’s total national population.
Psychologists say that children and teens do have good chances of turning their lives around if they are dealt with with a combination of appropriate punishment, rehabilitation. and support.
Of course, if the law is passed, then the NSW Government will need to ensure that there are sufficient and appropriate alternatives to detention or jail for these young people. There are already a variety of treatment programmes which will need more funding to enable access for a greater number of participants.
The Children’s Court
Offenders younger than the age of 18 are dealt with in the Children’s Court.
The Children’s Court already has the power to deal with juvenile criminal matters in a way that is appropriate to the age of the child and the objective seriousness of the offence. The Children’s Court takes into consideration a range of factors in sentencing, including contributing factors, mental health, the severity of the crime, previous criminal acts, and the child’s home situation and family. The children’s Court can impose a range of sentencing options such as additional warnings, good behaviour bonds, fines, community-based orders or a custodial sentence.
While Federal and State governments have traditionally refused to consider raising the age of criminal responsibility, this is a positive step forward, and with the ACT already making progress, there is little excuse for the other states and territories not to follow suit.
This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.