The NSW Bar Association is renewing calls for the New South Wales Government to raise the age of criminal responsibility from 10 to 14.
A disturbing ABC Four Corners story has highlighted the brutal conditions in which children are held in youth detention, particularly in the Banskia Hill Detention Centre in Western Australia where some children are being placed in unlawful solitary confinement. It is unsurprising that locked up in this way, children have self-harmed and attempted suicide.
“Sending ten-year old children into the criminal justice system is exposing them to trauma. It is not stopping them committing crimes nor is it making our community safer in the long-term,” says Gabrielle Bashir SC, President of the NSW Bar Association. “Vulnerable children need support, without undermining community safety, to ensure that any problems can be addressed swiftly, at a critical time in the child’s development.”
“The staged approach articulated by the Law Council on Raising the Age is supported by the NSW Bar and offers a template for change.
“The Association calls on the Council of Attorneys-General (CAG) Age of Criminal Responsibility Working Group Review to release a long-suppressed report, which reportedly endorses lifting the minimum age to 14 and apparently makes recommendations in similar terms to the position of the Bar Association and the Law Council.
“State governments and politicians have now dragged their feet for far too long, despite this report, ignoring reams of expert medical and legal advice that confirms criminalising children aged 10, 11, 12 and 13 does not work,” says Ms Bashir. “Jailed children – often the most marginalised in our community – are set on a path of lifetime damage.”
ABS data that may be looked to by governments in relation to children under 14 must be treated with caution as it defines “young offenders” as including those in this State who have not been tried, some who have not even been charged, and in relation to all of whom there is a presumption that they do not know right from wrong. The true data reveals that children under 14, and particularly First Nations children, are being subject to the criminal justice system, including being bail refused in detention awaiting hearings, despite in 2019, around 99% of matters before the courts ultimately resulting in a non-custodial outcome.
The NSW State Government recently told a Budget Estimates hearing that the daily cost of detaining one child or teenager in NSW had risen to nearly $2,000 per day.
Children who have contact with police, courts and jails are more likely to reoffend and commit crimes as adults. This further clogs up a prison system which is costing the Australian taxpayer an estimated $5.4 billion and more each year.
“Youth detention centres are the classrooms for crime and the gateway to adult prison,” says Ms Bashir.
In previous submissions, the Association has outlined a raft of reasons for increasing the minimum age of criminal responsibility to 14:
• Medical community consensus is that a child’s brain has not properly developed at the ages of 10-14.
• First Nations children are significantly overrepresented in Australia’s child protection systems and disproportionately affected by the current minimum age. The NSW Government has committed to closing the gap on youth detention by reducing the rate of Aboriginal and Torres Strait Islander young people in detention by 30 per cent by 2031. Raising the age to 14 would have an immediate impact.
• Children with intellectual and psychosocial disabilities are also over-represented in the juvenile justice system in NSW.
• Police are charging children with offences but when they get to court, their cases are thrown out because they are too young to understand what is right and wrong – what is known as doli incapax. Children are often damaged by this unnecessary exposure to the criminal justice system.
• The current law is inconsistent with international standards, where the average age of criminal responsibility is 14. Australia is one of the only developed countries in the world to jail children as young as 10.
