Raising the Age: Moving on from 18th Century Penal Colonies.
A lot of people find comfort reflecting on how far we’ve come as a nation since the arrival of the First Fleet to Australia 200 years ago. Whilst there is a lot to celebrate, including functioning democracy, education and health care, there is a left to be desired – particularly in regard to the daily lives of Indigenous Australians and Children.
There were approximately 50 children onboard the First Fleet. Some were children of crew members; others were born on the ship. Others were convicts.
To most, the concept of putting a child onboard a ship and sent to a penal colony on the other side of the world, a child whose crime was likely to have been made to fend off starvation is inhumane. Yet, in effect, this practice continues today. In this year alone, around 900 Australian children between the ages of 8-12 will be taken from their families & communities and placed in youth detention facilities. By an overwhelming amount, these children are Indigenous Australians.
The injustice and inconsistency of holding a 10 year old fully accountable for criminal actions becomes starkly apparent when one considers that, a child under the age of 13 is considered too immature to have a Facebook account, that the minimum age to join most mainstream political parties in Australia is 14, and that road safety recommendations mean that many 10 – 12 year old’s should be in a booster seat.
What is the Criminal Age of Responsibility?
The age of criminal responsibility is the age in which a child is considered by law to have understood that their action were wrong and can face criminal charges. In all Australian States and Territories, the criminal age of responsibility is set at 10 years old. Translating this law in to practice, this means that police have the power to arrest, strip-search and imprision children who are only 10, or still in their early years at primary school.
Concerningly, most Australians are unaware of the current legislation in place; in fact two thirds of Australians believe it to be 14. Our children’s human rights under the Convention on the Rights of the Child are currently being violated by the treatment of children under criminal law in Australia. Not only this, but it also disproportionately impacts the children of Indigenous communities, perpetuating systems of racism and reoffence. In addition to the criticism of the treatment of children, Australia has also faced repeated criticism from the Committee on the Elimination of Racial Discrimination for not raising the age of criminal responsibility.
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 2018-19, 60% of all imprisoned children were Indigenous. Of all the 10 year old’s imprisoned in 2020, 80% were Indigenous. These children are placed in a system that is already geared against them and they are set up to fail; decades of racism and bias webbed into the make-up of the criminal justice system. As a result, Indigenous children are faced by the system at 18 times the rate of non-indigenous peers. 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.
Why do we need to raise the age from 10 – 14?
There is much evidence which highlights the urgent need for reform under international law and ethical responsibility beyond Federal, State and Territory governments. There is a plethora of documented and extensive adverse impacts of imprisoning children at such a young age. Taking a trauma-informed lens, being subject to significant emotional harm sat such a crucial developmental and formative stage can inflict a lifetime of damage upon the wellbeing of any person – especially children. Children who are charged with criminal responsibility are far less likely to complete their education or find sustainable employment. Countless medical advice also stress that children at the age of 10 do not have the capacity to conceptualise the consequences and severity of their actions. To top it all off, all these factors result in 94% of children imprisoned between the ages of 10 and 12 receiving another prison sentence before they adulthood.
At the end of the day, placing children in correctional facilities does not reduce the chances or likelihood to offend. It does the opposite, it steers them on a path of 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. Voices of Influence is one of the organisations joining the efforts campaigning to raise the age.
The Council of the Attorneys-General established a review and investigation into this issue in 2019. This review, however, has been anything but transparent. In July of this year the results of this review were deferred. The Council of the Attorneys-General is now being accused of withholding submissions and evidence which are supportive of the reform. The Council of the Attorneys-General has not released a single report despite receiving more than 90 submissions and multiple formal requests from the Senate. Let us not forget, these actions follow up “two-and-a-half years of inaction and delay” by the Council, Federal and State governments. It is estimated that 600 children under the age of 14 remained behind bars during the duration of this review.
In response to this, 48 organisations publicly released their submissions, all of which detailed the importance of raising the age and the dangers of early entry into the criminal system. Of these organisations, 96% highlighted the overrepresentation of Indigenous Children as a urgent matter in their advocacy for lifting the age.
The federal government has shirked its duty to these children by asserting that is is a state issue. The Attorney General, however, has the power and capacity to instate transformational change and prevent many Indigenous Children from forming lifelong ties to the criminal justice system. It is Voices of Influence’s position that the Council of the Attorneys-General should accept the evidence and guidance from the submissions provided by the 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.
Other organisations backing the campaign to Raise The Age include:
The Human Rights Law Centre
The Law Council of Australia
Amnesty International
Change the Record
National Aboriginal and Torres Strait Islander Legal Services
The Royal Australian College of Physicians
The Australian Indigenous Doctors Association
The Australian Medical Association (AMA)
The Lowitja Institute
UNICEF Australia
The Murdoch Children’s Research Institute
The Academy of Child and Adolescent Health