Footnotes is a podcast by SULS hosted by students, for students, presenting new and intriguing stories about the law and supported by Gilbert + Tobin. Here are the highlights from their most recent episode where we discuss the recent “Raise the Age” campaign.
The recent Raise the Age campaign, spearheaded by legal experts, doctors and justice groups, aims to raise the age of criminal responsibility from 10 to 14 to bring Australia in line with many of the jurisdictions around the world and to stop kids from being locked up. In this episode of Footnotes, we delve into Australia's current policy regarding the age of criminal responsibility, have a look at the backgrounds of the kids who are ending up in prison because of it, and also discuss potential alternatives to the current practice of youth incarceration.
‘The age of criminal responsibility’ - what does that actually refer to?
The minimum age of criminal responsibility is a threshold below which you cannot, by definition, commit a crime. In New South Wales, there is a conclusive presumption that a child under the age of 10 cannot be guilty of any criminal offence.
Who is in the youth justice system?
In 2018, data from the Australian Institute of Health and Welfare found that on an average day in Australia, 910 youth were in detention. However, another AIHW report this year found that 63% of young people in detention, on an average day, were unsentenced; this portion of youth have not been found guilty yet, and may be on remand or awaiting a charge.
What are their backgrounds?
Common causes include being in the child protection system, family dysfunction, poverty, and drug and alcohol abuse by parents, or the children themselves. We also, unfortunately, see Aboriginal and Torres Strait Islanders people majorly over-represented in the youth, as well as the general population.
Banksia Hill Detention Centre in WA found that nine out of 10 incarcerated youth had some form of neuro disability. Additionally, 36% of these people between the ages of 10 and 17 have FASD (fetal alcohol syndrome disorder), an umbrella term for a variety of disorders that children can be given because of their mother's alcohol use during pregnancy.
Associate Professor Garner Clancy shared his thoughts on the current age of criminal responsibility in Australia.
Based on your array of experience, what do you see as the impact of detention on, particularly, 10 to 13 year olds?
In a word: bad. 10 year olds are quite vulnerable in detention and that can be a concern for both their safety, but also their worldview if they are associated with older, more sophisticated offenders and trying to fit in. It can be really quite damaging for very young people to be in custody.
How is the judicial system, as it stands at the moment, promoting rehabilitation and trying to prevent recidivism?
There’s a series of steps depending on the severity and frequency of offences. If a young person engages in criminality for the first time, ideally they’re diverted from the children's court to police caution or to a youth justice conference, with the emphasis on not having them enter the system. Justice conferences build on a restorative justice model; the young offender and victim, in the presence of a police officer sit down, talk it out, and then develop an outcome plan which essentially identifies what the young person will do to make amends.
At that point, if they continue to offend, they are likely to end up in the children's court which has a heavy emphasis on rehabilitation. There's an effort to try and provide community-based supervision, provide links to counselling services and other support mechanisms.
How would raising the age of criminal responsibility from 10 years old affect things?
In a perfect world, welfare, child protection and other systems better respond to the needs of those young people. Raising the age will both clear the very young kids out of the system that can be stigmatising, and divert them into the welfare system which will slow their entry into the youth justice system.
What have you identified [in your research] as the key considerations for the development of effective crime prevention plans?
In the first instance, effective crime prevention policies require early intervention. The provision of parenting training to help and guide new parents and the provision of child care and school enrichment programmes to help young people are important focuses. Then it's about building strong communities: how do we ensure that young people grow up in neighbourhoods where crime isn't rife, where there are lots of positive opportunities for their development.
In light of that, would changes in the age just be a band aid solution?
Not necessarily. Raising the minimum age of criminal responsibility is an adjunct to all of those things: it further helps us keep children out in the criminal justice system to allow them to mature and allow them to get the types of services that are more likely to provide a supportive framework and to assist them to avoid future offending.
For more insights about the ‘Raise the Age’ campaign regarding the age of criminal responsibility, check out our latest episode of Footnotes, available wherever you get your podcasts.