By Fariza Ali a final year of a Bachelor of Laws (Hons) at UniSA and an active volunteer with the Rights Resource Network SA.
The age of criminality has been a long-standing concern in Australia, with our standard being an alarming age of 10. The current age does little to encompass the fact that youth offenders are exposed to disadvantageous environments and do not have the cognitive development required to reach a degree of self-awareness that adults do.
Article 40 of the Convention on the Rights of the Child (‘Convention’) requires States to establish a minimum age of criminal capacity and advocating the use of measures to divert children from criminal proceedings. Further, the Convention calls for proper institutional care to be given to children which are proportionate to their circumstances and the offence committed. The UN Committee recommends that all countries adopt a minimum age of at least 14, which would align with Australia’s obligations under the Convention and respond to the international standards set by countries such as Germany, Italy and Spain.
In this post, we turn to Australia’s international obligations and observe a psychological perspective on raising the age of criminality, as well as addressing the overrepresentation of Aboriginal and Torres Strait Islander children in detention.
Issue 1: Children do not have the mental capacity for criminal responsibility
Research shows that children may develop communication difficulties, cognitive delay, learning disabilities and lasting damage on the wellbeing of the child due to incarceration at such a tender age. Additionally, separating children from their families also has implications toward the risk of a child abandoning their education and struggling to find employment after coming into contact with the criminal justice system, which is disparaging as our children are the future of Australia.
Detaining children does not manage their behaviour and there is a chance that they may become tethered to the criminal justice system as they transition to adulthood because of the trauma it may surface. One 10-year-old child’s experience led them to be strip-searched, assaulted and detained for hours for burglary, which is appalling, considering the minimal harm he caused. The recent Inquiry into Victoria’s criminal justice system has brought to light that prison does little to reduce the rate of recidivism, which calls for Australia to develop better restorative and therapeutic methods to divert youths from the criminal justice system, adjacent to raising the age of criminality.
The Youth Offenders Act 1993 (SA) provides that restorative techniques are used for minor offences, which depend on:
· the extent of the harm caused by the offence
· the character of the youth offender
· the improbability of re-offending
· the attitude of the youth’s parents or guardians.
Family Conferences are used to divert youth offenders from court, which involves the victim, the offender, their family and a police officer to discuss how the offence will be dealt with. The South Australian Juvenile Justice study found that restorative justice practices have favourable outcomes for victims regarding satisfaction and fairness, however, children at the age of 10 are still at a limited capacity to understand the gravity of their actions and may still reoffend.
Issue 2: Overrepresentation of Indigenous Youth
Australia has an obligation under the National Agreement on Closing the Gap to implement measures such as an Indigenous-led model of care that responds to the need for culturally appropriate early childhood care. This includes offering better schools and housing for children while also improving the delivery of services to help reduce the risk of offending by young people.
Raising the age of criminal responsibility would help decrease the rate of overrepresentation of Aboriginal and Torres Strait Islander children. Statistics from the Australian Institute of Health and Welfare showed that nearly half of all young people in detention on an average night were Indigenous Australians. The Courts Administration Authority of South Australia reported that there is a link between child abuse and neglect and Indigenous youth crime, which can impact their likelihood of substance abuse from ages as young as 11. Therapeutic care should also be considered instead of detention, as they are normally affected by external factors, such as their home environment. If we focus on strategies to nurture the development of a child rather than solely on punishment, they may have a better chance of reintegrating seamlessly into society.
Conclusion
It can be conceded that some children aged 10 are capable of being aware of their actions, however, we cannot ignore the significant impact incarceration can have on the child’s tentative future. You can help raise the age of criminal responsibility by signing the petition at Raise the Age and spread the word to keep our children out of courtrooms and prisons.