The Age Of Innocence
OPINION | First Nations Justice
No child should ever grow up in a prison cell. Children belong in schools and playgrounds.
Funnelling children into prisons does not make communities safer, it undermines them.
By Maggie Munn and Monique Hurley
Human Rights Law Centre
Victoria’s backflip on raising the age of criminal responsibility – and the new NT government’s plans to lower it – fails children, Indigenous communities and the nation
No child should ever grow up in a prison cell. Children belong in schools and playgrounds, and need to be supported to learn from their mistakes, not locked in cages. Yet the current minimum age of criminal responsibility in the majority of Australian jurisdictions is just 10 years of age, which means that primary-school-aged children can be arrested, handcuffed, hauled before the courts and locked away in prison cells.
For years, Aboriginal and Torres Strait Islander, human rights, legal, health and youth advocates have been calling for governments at the state and federal level to raise the minimum age of criminal responsibility to at least 14. This is a floor, not a ceiling, for reforms to ensure that children grow up with their families and communities, and away from the trauma and harm of the so-called justice system.
In answer to these calls, the Victorian government had promised to raise the age from 10 to 12 by the end of 2024, and to 14 by 2027. In an egregious backflip, Premier Jacinta Allan recently reneged on this commitment – a move that will result in 12- and 13-year-old children continuing to be funnelled into youth prisons.
The Victorian Aboriginal Legal Service and the Victorian Aboriginal Community Controlled Health Organisation have called the broken promise by Premier Allan and her government a betrayal of Aboriginal and Torres Strait Islander communities, who have been calling for this reform for years. The fearmongering and failure to take real action will only cause more harm to First Nations children. As pointed out by the chief executive of the Aboriginal legal service, Nerita Waight: “Many of these politicians are parents themselves, but their children will never be subjected to racist policing, never be denied access to the supports they need, and never be thrown away. I wonder if they could have made this needless decision if it was likely to impact their children.”
There is a reason Aboriginal and Torres Strait Islander communities are pushing so hard for the minimum age of criminal responsibility to be raised – it is because this affects First Nations children, families and communities deeply and disproportionately. Due to a toxic combination of structural racism and discriminatory policing – and persistent government failure to reckon with this – Aboriginal and Torres Strait Islander children remain targeted by police and over-represented in youth prisons. Raising the age and reducing early contact with the criminal legal system is significant because it could have had an intergenerational impact on ending the mass incarceration of First Peoples.
In recognition of this, the Yoorrook Justice Commission – the first formal truth-telling process into injustices experienced by First Peoples in Victoria – strongly recommended that the state raise the age to 14 years as an immediate priority, without exceptions, in recognition of the fact that “Aboriginal children are still grossly over-represented in the youth justice system and more needs to be done to address this inequality and the harm that flows from it”.
This followed a multitude of reports and parliamentary inquiries drawing the same conclusion, including a report prepared by the Standing Council of Attorneys-General in 2020 – with input from justice departments across the country – which recommended that “the Commonwealth, State and Territory governments should raise the minimum age of criminal responsibility to 14 years of age, without exception”.
The evidence is overwhelming that children under 14 cannot understand and comprehend the consequences of their behaviour, with the medical evidence clear that such children do not have the capacity for criminal responsibility. Children under the age of 14 are undergoing significant growth, particularly in terms of neurocognitive development. Contemporary research shows that they have limited capacity for reflection before action. Children in Years 4, 5 and 6 are not at a cognitive level of development where they are able to fully appreciate the criminal nature of their actions.
A low age of criminal responsibility also has a disproportionate impact on children with complex needs and disability, and effectively amounts to the criminalisation of currently unmet health, disability and trauma needs. As identified by the National Children’s Commissioner: “It seems the only thing we do in this country for kids with disabilities who have been failed by every other system, including health and education, is criminalise them.” Children entangled in the net of the criminal legal system, who are more likely to have disability and neurodevelopmental impairment, need care, not to be caged in prisons. We see reports from the disability royal commission that speak directly to the impact of incarceration on children with disabilities and coronial inquests that uncover preventable deaths in custody, yet governments consistently fail to uphold the human rights of children and ignore straightforward reform.
Australia is lagging behind the rest of the world. The United Nations has issued clear advice that countries should set a minimum age no lower than 14 years, without exception. In 2019, the United Nations Committee on the Rights of the Child urged Australia to bring its criminal legal system fully into line with the Convention on the Rights of the Child by doing so. This has been followed by a chorus of calls from United Nations bodies for Australia to better protect the human rights of children.
Funnelling children into prisons does not make communities safer, it undermines them.
Prison is devastating for children, and has lifelong impacts on their physical and mental health, development and wellbeing.
Studies consistently show that the younger a child has their first contact with the criminal legal system, the higher the chance of them going on to be re-criminalised in future. The Victorian Sentencing Advisory Council has found that “the younger children were at their first sentence, the more likely they were to reoffend generally, reoffend violently, continue offending into the adult criminal jurisdiction, and be sentenced to imprisonment in an adult court before their 22nd birthday”.
Abuse thrives in the darkness behind bars, and children can be subjected to harrowing treatment and brutal conditions in youth prisons. Children have been shackled in a barbaric dungeon in Banksia Hill in Western Australia, spit-hooded in adult prisons in Victoria, and caged in solitary confinement in the Northern Territory’s Don Dale facility, and human rights laws have been overridden to allow for children to be locked away in police watch houses in Queensland. Royal commissions in the Northern Territory and Tasmania into human rights abuses in youth prisons have had little impact on curbing the use of cruel and degrading prison practices. Funnelling children in and out of prisons not only destroys children’s lives, it does nothing to address the underlying factors that are causing their criminalisation in the first place.
Rather than listening to the abundance of expert evidence on what works to help children and make the community safe, governments seem obsessed with enacting kneejerk responses that continue to push children into youth prisons.
Turbocharged, “tough on crime” politics has a lot to answer for.
Premier Allan’s capitulation to the police and conservative media is representative of a broader trend where governments across the country continue to ratchet up a political agenda that has failed children and the community, instead of supporting evidence-based alternatives.
Conservative media and political figures are amplifying concerns about a perceived “youth crime” crisis, despite data indicating that crime rates are currently lower than they were prior to the pandemic. It is deeply irresponsible to perpetuate a false narrative that we are in the midst of a national crisis. News reporting on this, fuelled by anonymous police sources, frenzied headlines and social media commentary, has created a toxic debate fixated on punishment over prevention, and incarceration over care.
It takes political courage to counter such a narrative – and such courage is clearly lacking around the country. This has been compounded by a lack of leadership at a federal level, with the issue left to languish on the Standing Council of Attorneys-General agenda. In developments at a state and territory level, the Northern Territory raised the age to 12 in 2023, and committed to review it in 2025. The Australian Capital Territory adopted a staged approach, passing laws to raise the age to 12 in 2024, and 14 in 2025. Tasmania has committed to raise the age to 14 by 2029. The South Australian Attorney-General’s Department released a discussion paper in January this year, with a proposal to raise the age to 12 subject to a public consultation process that has followed.
No public commitments have yet been made to raise the age in New South Wales, Queensland or Western Australia, despite coalitions in each of those jurisdictions calling for change. Rather, politicians seem content to play politics with children’s lives by building more youth prisons, enacting regressive bail laws that needlessly pipeline more children into prisons, and increasing police powers that fuel discriminatory policing.
In Victoria, the recent youth justice reforms that only raised the age to 12 were passed along with alarming new powers that will allow police to transport, detain and use force on children aged 10 and 11 years old. Moves to raise the age in South Australia have similarly been marred by attempts to provide new powers for police to intervene in children’s lives, with a discussion paper contemplating new powers for police to interview and take forensic samples from children under the age of 12.
There are better options than police and prisons for helping children to learn and take responsibility for their actions. In cases where a child does something seriously wrong, it often means that something in that child’s life has gone seriously wrong. Children forced into contact with the criminal legal system have been let down by child protection, health, housing and education agencies that are supposed to protect them. They are children who are survivors of abuse and trauma, family violence, exclusion from school, residential care, disability and unmet health needs, who have been profiled by police and who need care.
Every child should be free to go to school, have a safe home to live in and be supported to learn from their mistakes. Yet, for years, governments across Australia have sat on their hands and failed to act on advice from medical experts, independent parliamentary inquiries and their own justice departments that the age of criminal responsibility should be raised to at least 14 years. Every day that governments across the country refuse to raise the age is another day of failing a generation of children who are being locked away behind bars.
Beyond this, governments must be bold and brave in their vision for the future and stop children being pipelined into prisons in the first place. The Victorian government spent millions of dollars building a new youth prison, and there are moves to build more youth prisons across the country. Imagine if rather than investing in locking up our children, we invested in caring for them instead? That is what would make our communities safer and give every child the best chance at a brighter future.
Maggie Munn and Monique Hurley are in the First Nations Justice team at the Human Rights Law Centre. You can learn more about the team's work here.