Footnotes - Imprisoned at 10? The Age of Criminal Responsibility in Australia

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.

The recent 'Raise the Age' campaign aimed to raise the age of criminal responsibility in Australia from 10 to 14. In this episode, we explore Australia's current policy on the age of criminal responsibility, look into the backgrounds of kids who are ending up in prison because of it, and also discuss potential alternatives to the current practice of youth incarceration.

Footnotes - COVID-19 and the Law

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 explore how COVID-19 has impacted our lives and catalysed changes to the legal profession.

Law profession

The unprecedented circumstances of COVID-19 have not only raised a number of substantial legal questions, but it's also made a significant impact on the legal industry. What do you think about that?

Courts have always been a place of theatrical tradition, so to move things online has been quite revolutionary. Technology is taking on a really important role with the New South Wales Supreme Court and the Federal Court creating a virtual courtroom through a combination of phone conferencing, WhatsApp and Microsoft Teams. Some people have been hopeful that the impact of COVID-19 is actually driven innovation in what has always been a fairly archaic court process.

On the flip side, there are the problems that we might be seeing as we're adopting technology in the long run. I think there's a lot of significance in everyone coming together face-to-face in one room to resolve conflicts. By relying on technology, we miss that. It might also overlook issues of access to the proper technology and infrastructure: if you're in a remote community or don't have stable access to fast or reliable Internet, it's going to be a real issue of procedural fairness. 

Either way, do you think these new practises and methods will be here to stay or is it temporary?

I think it's good to know that we can trust the technology to work. Plan A is still to have everyone come together but worst-case scenario we have a Plan B that we like, at least for civil proceedings. I think it's going to get a bit more complicated in terms of criminal trials and getting together a jury. Any new jury trials were actually suspended because of COVID but the ones that are still have had to deal with a lot of issues as well. 

Around the country, the courts have been given greater discretion to order judge alone trials to limit contact and reduce the risk of infection. In most jurisdictions, the accused has to consent to the judge-alone trial. However, the ACT equivalent actually allowed judges to order these trials, whether the accused consented or not. That has led to a wide range of concerns, especially from the Law Council of Australia, since the right to a jury trial is actually one of Australia’s few expressed constitutional rights at the federal level. Removing a jury takes away the role of the community in the justice system, which is especially important in a criminal trial. Some have argued that this reduces accountability in the legal system as a whole.

Listen to this episode from Footnotes (by the Sydney University Law Society) on Spotify. What will a career in law look like post-pandemic, and has the student experience been irrevocably altered? Are the current social distancing laws fit for purpose, or an over step and an erosion of our civil liberties?

Gilbert + Tobin: Legal Innovation, Clerkships and the Future

Footnotes is a podcast by SULS hosted by students, for students, presenting new and intriguing stories about the law. Here are the highlights from their most recent interview with Gilbert + Tobin, featuring Kristie Barton (Clerk and Graduate Program Manager), Bryce Craig (Lawyer - Technology + Digital) and Lauren Ziegelaar (Legal Transformation Lawyer) about clerkships and graduate roles, how the delivery of legal services has changed in the face of new and innovative legal technologies, and the skills young lawyers need to equip themselves for the legal industry of the future.

Do you have any tips or tricks for clerkship applications and interviews having gone through the process yourself and, Kristie, been on the other side of that? What advice would you give?

BC: I think it's very important to show your interest in the firm you're applying for, as well as a willingness to learn and contribute to growth. A keen clerk is the best clerk.

LZ: I totally agree. Do your research around the firm you're applying and have a genuine interest in the firm and the work that you're doing; but also have genuine interests outside of that. Don't be afraid to talk about the fact that you love running marathons or horse riding. You want to use your judgment about when to raise those things, but don't feel like you have to be this cookie-cutter person who doesn’t love anything but the law. 

KB: In terms of applications, tailor your application to the film that you're applying for. Try to find exactly what it is about each firm that really resonates with you or excites you and put it in the application. You’ll definitely get further in the process. 

The clerkship process is, obviously, very competitive. What advice would you have for people who may be unsuccessful this year?

KB: Clerkship may be the most linear pathway into a graduate program, but it's definitely not the be-all and end-all. The recruitment process offers such a unique opportunity for students to connect with firms and start building their networks by identifying people that they would like to have as mentors or contacts down the track. That is hugely invaluable. 

What do you see as being the role of technology and innovation in the delivery of legal services, drawing on your own experiences?

LZ: Great question! I was really lucky to work with the legal services innovation team as a graduate. The biggest learning point for me was that technology isn’t going to replace people; it just augments the way we deliver our legal services. I think what we’re going to see is more and more law firms and legal practice groups operating on the model, where it’s not a pure labour market but a labour plus capital market. 

At the moment, we just charge for our time and add disbursements such as court fees or other fees but we’re going to see the way we price and charge our work change. We are moving towards a market where law firms are providing legal advice but also tools, technologies and platforms that can be licensed out to clients. We are moving towards a model where the time of the lawyers is just one element of the services that the firm offers.

BC: Lawyers have always occupied a number of roles for their clients. They are expected to be commercially-minded and risk-averse and think about the ‘people’ element of how a decision is going to impact the client. Now, we're also expected to have competency with technology and data and applying that to matters. All the large matters I've worked on this year have some elements of data management and technology along with digital teamwork help bring clarity to those matters. That's just one example of how technology is becoming another part of the multipronged role we are expected to fill for our clients. 

KB: We need people now that are adaptable and open to new technologies and solutions and have a level of technological literacy. We certainly get some queries about how technologies like artificial intelligence are having an impact. I think lawyers are definitely not going away anytime soon, but we are upskilling our lawyers on qualities such as project management, data analytics and design thinking. We talk about this ‘T-shaped lawyer’ where traditional legal knowledge and skills are in the middle and non-legal skills are becoming increasingly important.

BC: The T-shaped Model is saying that you need to have some level of insight into many roles, but you don't have to be an expert. You don’t need to know how to code, for example, but you need to know how to talk to someone with those skills and to bridge that gap. Often the role that I see myself and other lawyers occupy is one of the conduits between those with very deep skills, and the request of the client.

LZ: There's also another model called the Delta Model. It has three sections: the process, the practice, and the people. The depth of your skills in those areas changes depending on what role you occupy. Your legal knowledge still forms the absolute foundation, but the additional skills you need evolve quickly. I think you guys are probably in the best position for it as early career professionals because you're incredibly adaptive and fast learners. I don't think it's something you need to be worried about as long as you're open to it.

Do you think COVID is going to be the tipping point for the law in the way that it approaches technological innovation? Now that we've gotten familiar with doing things digitally, do you think that this something that we are going to see in the future of law?

LZ: I think there are some elements that will change a lot but other elements are uncertain. Producing change in a law firm model has its own unique challenges. The things that speed up those processes are client-driven forces, internal forces such as staff and employees, and also external forces, such as a global pandemic. I think it will produce change, but it just depends on what areas will see that lasting change. 

BC: I think one of the impacts brought about just by changing economic and financial circumstances will be that a lot more clients will be even more cost-conscious. I think it's going to bring newfound relevance to teams, like Lauren's, that routinely deal with how to optimize the delivery of legal services.

How do you think your experience with innovation has helped complement other aspects of your work as a lawyer?

LZ: Having exposure to so many parts of the firm made me a better lawyer in my role in the corporate team because I really understood how the firm works from a business perspective. As soon as you understand the business side of the firm, it makes sense as to why things are done a certain way, and you can find opportunities to solve inefficiencies. 

If you want more insight from Kristie, Bryce and Lauren on the impacts of technology and innovation, have a listen to the full episode of ‘In Conversation with Gilbert + Tobin - Legal Innovation, Clerkships & the Future’ on your favourite podcast platform. 

Listen to this episode from Footnotes (by the Sydney University Law Society) on Spotify. Considering a career in commercial law? Keep hearing buzzwords like "legal tech" or "legal innovation" but not sure what they mean?

Footnotes: Allens "A Day in the Life of a Litigation Lawyer"

SULS Footnotes is a podcast hosted by students, for students, presenting new and intriguing stories about the law. They’ll be releasing monthly podcasts throughout the year, so make sure to check them out on any podcast platform (Spotify, Apple Music, etc.) and follow SULS on Facebook and Instagram. 

Here are the highlights from their most recent interview with Allens on ‘A Day in the Life of a Litigation Lawyer’, with Lucy Zimdahl and Daniel Emmerig from Allens’ Disputes team, to see how the process of litigation unfolds on a corporate scale.

What does an average day for you look like?

Lucy: I probably spend a lot less time in court, and spend a lot less time at my desk in front of a computer than you would imagine. A lot of my day is meetings with barristers, with clients, with internal team members and emails back and forth. I would think that I’m in the office 95% of the time. 

Interviewer: How many opportunities are there for pro bono work?

Lucy: A lot! You are encouraged to treat your pro bono workload very much on level with all your billable client work. It's a big part of what we offer at Allens, definitely check out the website if it’s something that interests you!

Are there any large differences between the commercial approach against the traditional approach that law students might be more familiar with?

Daniel: In law school, you’re writing an exam response examining a fact scenario. When you're actually practising law, you also have to consider things like commerciality; assess the risks. It's more of a consideration in the context of an operating business than in an exam.

Is going to Court intimidating? And does it get easier?

Lucy: It is still quite intimidating and incredibly adrenaline-filled. Even though you are not doing the advocacy, you have to be switched on, which is quite tiring but thrilling; it’s one of the things I find most gratifying about being a litigator.

Daniel: When you're the junior lawyer, you will be going through the documents and will become very familiar with the minutes. If there is a question and the barrister turns around and asks you what actually happened, then you have to find the document or the evidence to clarify. It can be very exciting and intense. 

What is your role in the courtroom? Is it always high adrenaline and high stakes Suits style?

Lucy: [laughter] Ignore what you see on US TV. You don't whip out the smoking gun document dramatically and you're not allowed to ambush a witness. Compared to what you might see on Suits, it's very diplomatic and civilised and the emphasis is on time efficiency and cost efficiency. Having said that there can be plenty of drama: opening and closing arguments from barristers are often a sight to behold and everyone is on the edge of their seats during a witness cross-examination.

Daniel: It's very tense as well for the lawyer because you have quite a personal stake in this matter. Something could happen in the next half an hour which could make or break this whole thing. It is great to watch the product of all your work and it's also very exciting because you don't know what's going to happen.

What are the key skills required and the pressures of your role?

Lucy: Ownership in taking initiative is a really vital thing. The grads I admire most and see the most potential in are the people that will come to a meeting with me and, without any prompting, will say what they would do next. That's important because everyone has to keep driving things forward and making progress.

Daniel: At the entry-level, the particular skills you need would be the ability to learn on the job. Also having the ability to do a draft and accept that it's still a learning process; you're not going to truly master this kind of work for another few years. 

Lucy: I guess some of the pressures are that the turnaround times need to be really fast. But the nice thing about litigation is that it naturally ebbs and flows. And even when it is busy, it's typically because you're on the cusp of trial or settlement of an arbitration. These are the most exciting time in that matter’s life cycle as well. 

Interviewer: Do you have any general advice for lawyers wishing to become involved with or learn more about your work?

Lucy: In an ideal world, a summer clerkship or work experience with a barrister would be fantastic. On a more real level, think closely about the resources that you do have at your disposal. Your lecturers and tutors have many of their colleagues practising in law firms in Sydney; maybe they could put you in touch. Talking to people in the industries that you're interested in is the best way to understand what your future would look like in practice. 

Nowadays I think there's probably better access for students to information about law firms. We have Allen’s Confidential podcast that’s run by our graduate; firms also publish updates on their websites about significant matters. 

Two other tips I would give is that there are probably opportunities at University to volunteer with legal advice clinics, it will give you really significant meaningful experience in diplomacy, drafting, negotiation skills and matter management. 

The other is to follow Chambers, where different barristers publish case summaries that will be focusing on the legal issues at the heart. If you keep abreast of those you’ll understand the kind of disputes we, at Allens, face. That’ll be essential in coming across as well rounded and well developed as a law student applying for work experience. 

Daniel: If you’re particularly interested in litigation or disputes, working for a barrister while you're at university is a very good option. You can see the differentiated roles between barrister and solicitors, and you may get chances for having a crack at first drafts of things, commissions or even discussing a matter with someone senior. 

[Interview ends.]

If you want more insight from Lucy and Daniel on what the role of a litigation lawyer entails, have a listen to the full episode ‘A Day in the Life of a Litigation Lawyer’ by Footnotes on your favourite podcast platform.

Listen to this episode from Footnotes (by the Sydney University Law Society) on Spotify. This is a bonus episode from last year, featuring an interview with Daniel Emmerig and Lucy Zimdahl from Allens about a day in the life of a litigation lawyer.