Indigenous leaders and human rights organisations including Amnesty International have stepped up a campaign to raise the minimum age of criminal responsibility for children in Australia.
The median age of criminal responsibility around the world is 14. However, in Australian states and territories, children as young as 10 can be locked away for criminal offences. The #RaiseTheAge hashtag was adopted widely on social media after the Northern Territory Government released its final report on the Royal Commission into the Protection and Detention of Children in March. Among 227 recommendations, the report recommended elevating the age of criminal responsibility from 10 to 12 – the absolute minimum recommended by the UN Committee on the Rights of the Child.
“No child should be strip searched, hand cuffed, or locked in a prison cell,” said Director of Legal Advocacy at the Human Rights Law Centre Ruth Barson. “The Turnbull Government cannot defend human rights on the world stage while allowing primary school-aged children to be sent to prisons at home. Raising the age is a simple reform that would make a world of difference. What we need is for our governments to show some leadership.”
According to the Australian Bureau of Statistics (ABS), about 600 children under 14 are locked up in Australian prisons every year. And while Indigenous Australians make up less than 3 per cent of the Australian population, the Australian Institute of Health and Welfare’s 2015 report on Youth Detention found Indigenous Australians account for 54 per cent of juvenile detainees.
Right now, children as young as 10 are being locked away in prisons across Australia
For children under the age of 14, the ratio of Indigenous to non-Indigenous detainees is even higher. ABS data has shown up to 70 per cent of children between the age of 10 and 14 serving sentences in youth detention are Indigenous.
Indigenous advocate Keenan Mundine, a former youth detainee who spent 10 of his first 25 birthdays in prison, travelled to Geneva in July to address the UN Human Rights Council on behalf of Indigenous Australians who are disproportionately represented in Australian youth detention centres. “Mr President, right now, children as young as 10 are being locked away in prisons across Australia,” said Mundine, who founded the Sydney-based Inside Out Aboriginal Justice Consultancy to provide support for Indigenous youth and help them re-integrate into the community after leaving prison.
“In joining this Council, the Australian Government promised to champion the rights of Indigenous peoples,” he continued. “But, for as long as Indigenous children are 25 times more likely to be imprisoned than non-Indigenous children, these will be hollow promises.” Legislation in all Australian states and territories allows children as young as 10 to be found guilty of an offence. However, each jurisdiction also has a statutory presumption that children between 10 and 14 cannot have formed the guilty intent or mens rea to commit a crime. To rebut this presumption and prove the guilt of a child under 14, prosecutors must provide clear evidence that the child was mentally developed enough to understand the impact of their criminal act.
“It’s a principle known as doli incapax, where a child under the age of 14 is presumed incapable of forming the necessary intention to commit a crime,” explained Immediate Past-President of the Law Society of NSW Pauline Wright. “This presumption is rebuttable if proven beyond reasonable doubt that the child has sufficient intellectual and moral development to understand the difference between right and wrong.”
The minimum age of criminal responsibility in New Zealand and the UK is 10, while children as young as six can be charged and detained in some US states. Scandinavian countries including Norway, Sweden and Finland set the minimum age of criminal responsibility higher than most, at 15 years.