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“Indictment of our nation”: calls grow to raise the age of criminal responsibility to 14

Dominic Giannini 9 January 2020 93
Bimberi

ACT Human Rights Commission Young People Commissioner Jodie Griffiths-Cook says that keeping young children in detention is not conducive to their rehabilitation or imposing accountability. Photo: File.

Were you able to decipher what was right and what was wrong at the age of 14? How about 10?

In Australia, you can be sent to jail before you can legally join Facebook, fly on a Qantas plane unaccompanied, apply for a Medicare card, or be left unattended by a parent or guardian in Queensland.

The age that children should be held criminally responsible for their actions is under debate as a national push is underway to raise the age of criminal responsibility across Australia from 10 to 14.

ACT Human Rights Commissioner Helen Watchirs says that the minimum age of criminal responsibility in Australia needs to be brought in line with United Nations (UN) standards.

“Back in 2005, we called for the age to be raised, but the answer from the government was that it was eight years old until 2000, and they were not going to change it again,” the Commissioner told Region Media.

“We did a human rights audit in Bimberi [Youth Justice Centre] in 2011, and called for the age to be raised to 12.

“We now have the evidence in relation to brain development for complex reasoning regarding consequences and impulse control, which is not developed until the age of 14 generally.

“[In 2019] the UN changed the minimum age from 12 to 14, so that is now the international standard.”

In September 2019, the UN issued general comment 24 regarding children’s rights in juvenile justice. It called for all state parties to increase the minimum age of criminal responsibility to at least 14 years of age, and says that under no circumstances should countries with a higher minimum reduce the age.

ACT Human Rights Commission Young People Commissioner Jodie Griffiths-Cook says that keeping young children in detention is not conducive to their rehabilitation or imposing accountability.

“I have seen 11-year-olds, 12-year-olds and 13-year-olds come in and out of Bimberi. The youngest I understand is 11, but I cannot speak to what happened before my time [in 2016],” she told Region Media.

“At 11, we are talking about a child who is still in primary school. Is that really the place to put a child who would benefit more from some support intervention?

“Most of them are low-level property crimes like burglary and theft. The more serious crimes only make up a very small number of circumstances.”

On top of most crimes committed by young people being minor offences, the delay hearing cases may mean children breach bail unwittingly, such as if visiting family outside the Territory, Commissioner Griffiths-Cook said.

“What we are seeing is kids going in for breaches of bail conditions, even though the original offence itself was one that the court deemed did not require incarceration.

“But then they breach bail by perhaps going to visit their sister or a family member and with that breach, they are taken into Bimberi. It can be something as minor as that.

“It means that kids can be held in detention for quite lengthy periods of time before [going to] court. You can have a child who is in custody for one week, two weeks, three weeks, or months at a time.”

Children need to be offered and directed to support services instead of being herded towards incarceration and detention centres, Commissioner Griffiths-Cook said.

“If they find themselves in criminal proceedings, they have a significantly inhibited ability to understand the nature of those proceedings and be in a position to respond appropriately.

“Because of the malleability of their brain at that time, they are far more likely to accept a plea bargain or a false confession, mainly because they just do not understand what is going on around them.

“The research tells us that the younger a child enters a justice facility centre for the first time, the more likely they are to re-offend. We need to get in early and in the right way and approach things in a more supportive way.

“Locking them up is counter-intuitive to the outcomes that we are trying to achieve. It does not work.”

Although there are legal measures in place to ensure that children who do not know what they are doing are protected, in practice, it is often hard to implement, Commissioner Griffiths-Cook told Region Media.

The legal concept of doli incapax refers to children who are deemed to be incapable of forming criminal intent because of their age and must be proved beyond all doubt.

“The challenge with this presumption is that it is quite subjective in and of itself. What is proving beyond all doubt for one person, can be quite different for another person,” Commissioner Griffiths-Cook said.

“That is the challenge we see in practice, these huge inconsistencies in the way it is applied, and in the way those processes are practised.

“It is often quite prejudicial and the approaches that are used can be led down a path that would otherwise be inadmissible.”

The fact that we lock up children is a lasting shame on Australia, the 2019 President of the Law Council of Australia, Arthur Moses, said in a speech on 10 December last year.

“Across the country, there are around 600 children under the age of 14 in our prisons every year, and 10 of them are just 10-years-old,” he said.

“More than half have not even been sentenced yet. These are some of the most vulnerable children in society. Many have been abused or neglected during their short lives. Many have cognitive impairments.

“They need help and the protection of society. Instead, they are being put into juvenile detention centres.

“This is an indictment on our nation.”

The Council of Attorney-Generals voted in November that a Working Group would undertake targeted and public consultation and present a report to the Council in 2020.


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93 Responses to “Indictment of our nation”: calls grow to raise the age of criminal responsibility to 14
GrumpyMark GrumpyMark 7:21 pm 17 Jan 20

While I think the article raises some issues that warrant consideration, I am also mindful of the victims. Imagine how the parents of toddler James Bulger would feel, if the two ten year old boys convicted of his murder had been treated with kid gloves by the legal system, because “… We need to get in early and in the right way and approach things in a more supportive way.” I hope when deciding the ultimate outcome, the responsible bodies take into account that for every crime there is generally a victim and many of them (and their families) bear long term scars – if not physical then definitely psychological.

Julia Bocking Julia Bocking 7:58 am 16 Jan 20

A very worthwhile and overdue debate!

Scottie Avela Scottie Avela 5:22 pm 14 Jan 20

So what...? Its about accountability and taking these behaviors on early may just save these kids..... Its the Do-Gooders that stopped parents smacking their kids and gave us the generation of violent and uncontrolled brats that we have now....

Benny Turnbull Benny Turnbull 11:02 pm 13 Jan 20

Proposed by people who have never been the victim

Acton Acton 9:10 pm 13 Jan 20

“We now have the evidence in relation to brain development for complex reasoning regarding consequences and impulse control, which is not developed until the age of 14 generally.”

No – the school climate change protests are evidence that “brain development for complex reasoning” is absent and probably won’t be developed until the age of 24, perhaps longer.

Meg O'Rourke Meg O'Rourke 7:29 pm 13 Jan 20

Anna O'Rourke interesting!

May Mac May Mac 5:06 pm 13 Jan 20

The idea that a person's maturity switches over to a higher level on a particular date is flawed. It is upsetting to think that if I, a short old lady, were mugged by a hulking big youth, the legal consequences for him would depend on whether he did it the day before or the day after his birthday.

Lack of maturity should absolutely be taken into account, and young people capable of empathy and personal growth should be given every assistance to get on the right path in life. For offenders who have anti-social personality traits maturity alone won't fix that and so immaturity should be treated as a smaller factor.

    Julia Bocking Julia Bocking 7:59 am 16 Jan 20

    It is a shame you already assume a perpetrator would be young and male. Young men need our encouragement, not stigma.

    May Mac May Mac 11:46 am 17 Jan 20

    Julia Bocking Why jump on my words when the whole subject of the article was youth? How are you supposed to talk about issues raised in the article if you can't mention the relevant details? If the perpetrator was around 40 years old it wouldn't legally make a difference if it happened the day before or the day after his birthday so it is irrelevant to this discussion.

    For me as a woman it is an ingrained habit to feel vulnerable regarding males (and for someone my age the idea that women want equality in violent crime is fairly new) reinforced by witnessing a physical altercation between a student and teacher in primary school (yes there are boys that young who are physically large enough to take on teachers) so my language reflected that.

    That does not mean I am generalising about young men, the many young men going about their lives without harming others were not the subject of the discussion and my post recognised that for those who have come to the attention of the authorities a thoughtful individual response is best.

    Also, just my opinion, but everyone who takes the time to try to contribute a considered opinion to discussions deserves encouragement, not a rebuke for some kind of perceived failure in waving one tribal banner or another. Sometimes it feels like trying to say anything just gets lost in the exchange of conservative intransigence and politically correct virtue signalling.

    Julie Macklin Julie Macklin 10:23 pm 17 Jan 20

    Julia Bocking Well according to statistics perpetrators are overwhelmingly likely to be male.

    “According to the annual National Prisoner census as at 30 June 2012, males comprised 93% of the total age standardised prisoner population, while females comprised 7%”

    https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4125.0main+features5210Jan%202013

    May Mac May Mac 12:25 pm 20 Jan 20

    The link didn't work for me. I found a page on the ABS website and tried to post it but it doesn't open from here either.

Chris Cross Chris Cross 11:40 am 13 Jan 20

Do big boy crime, do big boy time. Age has nothing to do with it. James Buldgers killer's were kids themselves. Leave it at 10 and let the Courts decide if they are 'adult enough'. But putting a blanket veto on anyone under 14 is wrong.

Emmanuel Abu Emmanuel Abu 10:36 am 13 Jan 20

There are many of them in our jails and court system very sad indeed.

grim123 grim123 9:45 am 13 Jan 20

If you’re worried that your 10 year old kid is going to have committed enough crimes that they are going to get a custodial sentence, you have failed as a parent and your children should be removed.

Kaylene Rocha Kaylene Rocha 11:26 pm 12 Jan 20

I don’t know what the answer is but up here in Townsville ( been here for 1 year), we have gangs of kids (I’m talking as young as 10), stealing cars.. it’s a nightly thing..

last month reported 110 cars stolen in a population of under 200,000... these are gangs of kids.. our airport had to stop planes coming in and out because kids had stolen a truck and were speeding through the streets on the wrong side of the road.. it’s really bad, and those poor kids have no nope at a successful life if this isn’t stopped..

    James Alan Nguyen James Alan Nguyen 11:33 pm 12 Jan 20

    Kaylene Rocha oh yea, didn't one of those carjacking gangs get beaten senseless and sent to hospital? Good!

    Kaylene Rocha Kaylene Rocha 12:51 am 13 Jan 20

    James Alan Nguyen yep, that was just a few days ago..

Igama Mawa III Igama Mawa III 7:45 pm 12 Jan 20

Under the pretence of age you have under 16s starting fires and assaulting people on the streets and public transport, and getting away with it. A 10 year old knows the difference between wrong and right.

    Jill Lefrancois Jill Lefrancois 8:31 pm 12 Jan 20

    if you looked at the skin colour of 10 to 14 year olds who get locked up, you'll find they are rarely white, and usually aboriginal

    Igama Mawa III Igama Mawa III 8:33 pm 12 Jan 20

    Jill Lefrancois Crime should not discriminate which colour of skin be individual is. The law has to be applied equally.

    Imogen Ebsworth Imogen Ebsworth 9:07 pm 12 Jan 20

    Igama the point is, it isn't. Aboriginal kids are completely over-represented in the justice system because the police target them.

    The kids aged 10-14 (black white or other) who commit serious crime are a tiny minority and generally from highly dysfunctional and terrible home backgrounds. They need intensive intervention and support to rehabilitate, and jail is the opposite of that. If we don't want them to grow into being lifelong criminals, jail is the last place we should send them.

    Ginger Pucchi Ginger Pucchi 5:00 pm 13 Jan 20

    Imogen Ebsworth what strategies are Australian government going to intervent about whole Aboriginals Australians where their kids watching their parents drinking everyday and smoking /,taking drugs in front of their kids. I have seen their kids smoking at of 7-8 years old with their parents. You are who your parents are ? Its ugly truths ,but. It will take forever millions years for Aboriginals Australians, to make it happen? Its extremely sad to WATCH innocent children in that lifestyles which they didn't choose. They are, their environment ,poor kids💔💔💔💔💔💔

    Ginger Pucchi Ginger Pucchi 5:23 pm 13 Jan 20

    Jill Lefrancois its not because they are Aboriginals and it has nothing to do with their skin colour? Its the environment they are growing in it that have affected their growth and development as children. Australian police doesn't chase anyone for nothing. Iam extremely sorry and i only speak and write truths without any white LIES. Have a good one.

Mat Barber Mat Barber 7:08 pm 12 Jan 20

Keep it the same, some of them are already ferals at 12, if anything, lower the age one can be jailed

Peter Zala Peter Zala 6:50 pm 12 Jan 20

So those kids that bash, steel, murder should get detention at home should day, this article is the criminal

    James Alan Nguyen James Alan Nguyen 11:35 pm 12 Jan 20

    Peter Zala I firmly believe in the phrase, "Act like a man, get treated like a man."

    Peter Zala Peter Zala 7:32 am 13 Jan 20

    James Alan Nguyen 👍

Dean Colwill Dean Colwill 6:33 pm 12 Jan 20

Pretty sure jail is a last resort after looking at every other option for a ten year old. If they are in prison at 10 they’d be pretty troubled I’d imagine.

    Sean Roberts Sean Roberts 8:15 pm 12 Jan 20

    Dean Colwill being sent to jail was the entry requirement to live in straya. 😅

    Imogen Ebsworth Imogen Ebsworth 9:09 pm 12 Jan 20

    Dean unfortunately that's not the case. It also enshrines a falsehood, is that children have developed enough brains at such a young age as to comprehend criminal responsibility, actions and consequences. It's not the case.

Peter Major Peter Major 6:23 pm 12 Jan 20

Depends on the crime. In some cases incarceration is to light

    James Alan Nguyen James Alan Nguyen 11:37 pm 12 Jan 20

    Peter Major Especially in Victoria, "some cases" is a massive understatement.

Lee McDowall Lee McDowall 6:12 pm 12 Jan 20

Try them as is warranted, armed robbery/theft etc, if they are old enough to do the crime, they need to pay the penalty, these so called kids know nothing will happen to them as they are underage, time to get tough and they need to take/learn the consequences

Mandy Jade Ross Mandy Jade Ross 5:51 pm 12 Jan 20

Focus more on rehabilitation and work force skills/education.

More chance of helping a 13 year old and them going somewhere rather than lock em up and wait for them to be hardened criminals as adults.

Julie Stoker Julie Stoker 5:19 pm 12 Jan 20

I'm pretty sure lots of kids are on facebook who are under 10. They just lie about their age.

Catherine Hunt Catherine Hunt 5:04 pm 12 Jan 20

Yes please

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