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By Poppy Morandin and Jimmy Singh.


Despite a strong campaign to raise the age of criminal responsibility from 10 to 14, the decision has been deferred to 2021, following concerns that further work needs to be done regarding processes and services for children who exhibit offending behaviour.

The issue was discussed at the meeting of the Council of Attorneys-General.

More time has been provided to the Western Australian justice department and its working group, to examine alternatives to imprisonment for young offenders.

“I could not be more disappointed with failure of Australian Governments to make a decision to #RaisetheAge. There’s been hundreds of inquiries into youth justice. The alternatives to imprisonment are clear. This is a clear message that our kids’ lives don’t matter to governments.” said Roxanne Moore, human rights lawyer and Aboriginal rights activist.

The movement to raise the age is supported by organisations such as the Australian Medical Association, Law Council of Australia, Human Rights Law Centre, Public Health Association of Australia, Royal Australasian College of Physicians, National Aboriginal and Torres Strait Islander Legal Services, the Australian Indigenous Doctors’ Association, Change the Record and Amnesty International.

A petition created by Change the Record saw over 135,000 sign for the purposes of calling on the government to raise the age.

“In just 1 year across Australia close to 600 children aged 10-13 years were locked up & thousands more were hauled through the criminal legal system.” said Professor Anti Heiss.

“Children deserve love and care to reach their full potential…not to be thrown behind bars,” said Nakkiah Lui, indigenous activist.

The current state of Australia’s law is that pursuant to section 5 of the Children (Criminal Proceedings) Act 1987 (NSW), it is conclusively presumed that no child who is under the age of 10 years can be guilty of a criminal offence.

Children between the ages of 10-14 are also presumed to be ‘incapable of evil’, also known as the doctrine of doli incapax.

Doli incapax is a common law doctrine which basically says that there is a presumption that a child aged between 10 and 14 is presumed to be incapable of understanding right from wrong.

This presumption can be rebutted if the prosecution is able to prove that the child did know the difference between right from wrong.

The rebuttal of this presumption involves the prosecution proving beyond reasonable doubt that the accused child understood that his/her conduct was seriously wrong in a moral sense, as opposed to merely naughty or mischievous (RP [2016] HCA 53).

If this is proven in court, the child can be convicted and sentenced for a criminal offence otherwise he/she cannot.

The prosecution cannot use the gravity of the act itself, despite how horrific it was, to prove that the child knew how serious his/her criminal conduct was.

It is also worthwhile noting that the law allows the prosecution to use the age of the child as a relevant consideration. This means, the closer to 14 the child is, the chances of the child being aware of how serious his/her conduct was is increased. This does not allow the prosecution to argue that the child must have known how serious his/her conduct was just because a ‘normal child’ of the same age would’ve.

Whilst some learned individuals, such as Justice John Laws, have suggested that the practice of rebutting the presumption may focus criminal liability on those who come from advantaged family backgrounds, it has ultimately been found to disproportionately impact First Nations Children.

“What that deliberately fails to acknowledge is that for every one of those white middle and upper class kids whose brought before the courts in those circumstances, there will be 50 disadvantaged kids being brought before the court.” said David Shoebridge, Greens MP.

The campaign has been closely linked to the Black Lives Matter movement, noting that 65% of younger children in prisons are of First Nations descent.

In the Northern Territory, 100% of children behind bars are Aboriginal or Torres Strait Islander.

“We are criminalising a whole generation of young Aboriginal people; we are doing it with a broken set of laws and on the flawed assumption that that’s going to make us safer and it won’t.” continued Shoebridge.

The United Nations Committee on the Rights of the Child in 2007 concluded that a minimum age of criminal responsibility below the age of 12 years old is “not internationally acceptable,”.

The average minimum age across the European union is 14, along with 86 other countries including China and Russia.

“If there is a move to raise the age of criminal responsibility you have to identify what is the alternative for children who would otherwise be subject to the criminal justice process,” proposed Mr Speakman.

In response to this advocates have pointed to many longitudinal studies which highlight the way in which the criminal justice system can itself be potentially criminogenic.

“I have worked intensely alongside young people aged from 10 right through to 18 who have been imprisoned. Not one of those young people’s lives was improved or bettered as a result of incarceration or criminalisation.” said social worker, Witt Gorrie.

“The earlier a person comes into contact with the criminal justice system, the more likely it is that that is going to seriously negatively impact their life chances.” explained Shoebridge

“Having come into contact as a young teenager with the criminal justice system, there’s a disturbingly high likelihood that that contact will continue and roll over into ongoing contact as an adult and a far higher likelihood of incarceration, far lower life chances in terms of health outcomes and education outcomes, let alone economic outcomes.” he continued.

Whilst opposition to the movement has contended that incarceration is often necessary to deal with young offenders, a shift towards a “genuine corrective interventionist model” is put forth as making us a “far safer society” in the long run.

“There are undoubtedly instances where very young people that do acts, from our moral framework, are just incomprehensible, and just brutal and violent. Obviously, intervention is required in order to keep people safe, and to allow those young people to understand the nature of their actions and to put in place corrective measures so that they are not repeated.” contended Shoebridge.

“That doesn’t mean you put a 9 year old kid in jail, it doesn’t mean you put a 12 year old kid in jail, what that would mean is compulsory referrals to treatment and maybe circumstances where that compulsory referral involves a provision that would limit their liberty, that would retain them in a secure facility where their treated for mental health issues, but not be punished for an act they didn’t understand, or didn’t understand the consequences of or have an understanding of their moral culpability.” he continued.

“This campaign is not over. We will not stop until every 10yo child is out of prison and back in community where they belong.” assured Change the Record, an Aboriginal led justice coalition of legal, health and family violence prevention experts.

“Hopefully, what we would see then is a shift of resources from policing those young people to social services that are walking up and down those same streets, hoping to help those young people.” suggested Shoebridge.

Have a question on this topic? Get in touch with our experienced Sydney criminal lawyers today.

Published on 02/08/2020

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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