A coalition of 48 legal, medical and human rights organisations have called on Australia’s state and territory governments, as well as federal attorney-general Michaelia Cash, to raise the age of criminal responsibility, arguing that 10-year-old children do not belong in prison.
The groups have previously written to Cash calling for the age of criminal responsibility in Australia to be increased to at least 14 years and to protect children as young as 10 from practices including being strip searched and locked up for criminal offending.
Now, one year after the federal attorney-general and her state and territory counterparts (a group known as Council of Attorneys-General) met in 2020 to discuss bringing local rules in line with international standards, the groups have published their submissions on the issue to CAG.
Cheryl Axleby, co-chair of Change the Record & National Aboriginal and Torres Strait Islander Legal Services, said raising the age of criminal responsibility had been held off by CAG for too long.
“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,” Axleby said, going on to suggest that it was unacceptable to do nothing about raising the age in line with medical advice.
“I can only assume that state and territory attorneys-general have refused to publish these submissions because they lack the political courage to act.
“We cannot let this evidence sit on the bookshelves of politicians like the Royal Commission into Aboriginal Deaths in Custody and so many other inquiries and reports – state and territory governments must take action now and raise the age of criminal responsibility from 10 to at least 14 years old and give every child the opportunity to thrive,” she added.
Each of the 48 submissions recommend that the age of criminal responsibility be raised from 10 to 14. In Australia today, the ACT is the only jurisdiction that has committed to protecting 10-year-olds from imprisonment.
Human Rights Law Centre (HRLC) legal director, Meena Singh, said she could not understand Australia’s ‘complacent’ attitude to raising the minimum age of criminal responsibility after 12 months of silence on the issue.
“Locking up children as young as 10 does not make the community any safer. Instead, it further entrenches those children in the criminal legal system and proves that governments have failed to provide culturally safe supports instead,” Singh said.
“They (CAG) say they need more research-based evidence to raise the age, but the evidence is crystal clear. And it’s been sitting on their desk for over a year.”
The HRLC’s submission underscored the importance of supporting the mental, emotional and physical growth of children in a way that fostered positive behaviours. The group argued that the common law concept of doli incapax, which presumes children under 14 years need protection from the criminal legal system, had failed to safeguard children for a range of reasons. Some of these included inconsistent application of the legal concept, judicial discretion, and limited ability to access expert evidence.
The group called for urgent reform of the minimum age of criminal responsibility in Australia, along with extra measures to provide community support that addresses risk factors for this vulnerable group.
The Public Health Association of Australia’s (PHAA) submission agreed with the HRLC’s view on doli incapax and noted that if the minimum age of criminal responsibility was raised to 14, the legal principle would be redundant.
PHAA CEO Adjunct Professor Terry Slevin, preventing the incarceration of children was essential for their future health and well-being. The group advocated for better early intervention and diversionary responses for
“Keeping very young offenders out of incarceration is vital for directing them back to a safer place in the community in which they live,” Slevan said.