Lives are at stake. We need Australian governments to heed expert advice and raise the age of criminal responsibility to 14

Opinion 27 April 2023

This opinion piece was originally published in the Guardian Australia on 27 April 2023.

We have reached a critical point in the role of evidence in criminal justice reform in this country. At stake are the lives of children whose past trauma continues to be amplified by their needless collision with the youth justice system and youth incarceration. By adopting 12 as its minimum age of criminal responsibility from next year, and 14 by 2027, the Victorian government has gone against evidence-based advice. As the nation’s attorneys general meet on Friday to discuss the minimum age of criminal responsibility, it’s vital that they listen to the experts.

Why? Because compelling evidence shows that children younger than 14 have not sufficiently matured to fully appreciate the consequences of their actions. This fundamental feature of children’s neural development cannot be addressed by the principle of doli incapax, a legal test that has been inconsistently applied to determine children’s capacity to tell right from wrong.

Since 2016, Victoria’s Commission for Children and Young People has recommended raising the age following an inquiry into the treatment of an Aboriginal child in the child protection and youth justice systems. Recommendation eight of the Commission’s 2021 Our youth, our way inquiry again recommended no exceptions to a minimum age of 14.

Our calls have coincided with a groundswell of advocates across Aboriginal, legal, medical and youth organisations, the national Change the Record campaign, and the UN Committee on the Rights of the Child, which in 2019 recommended a minimum age of criminal responsibility of 14 with no exceptions, providing the international benchmark for this vital change.

As commissioners, we see first-hand a youth justice system that too often compounds the trauma of already vulnerable children. We directly see the young children who have been removed from family after experiencing abuse and neglect, only to find instability and still more risk in a stretched and flawed state care system. And we see too many of these children acting out their childhood trauma and cycling repeatedly through involvement with youth justice.

Further accounts of this trauma continue to emerge at Victoria’s Yoorrook Justice Commission, offering additional compelling reasons to learn from the past rather than perpetuate damage into the future, particularly for Aboriginal children and young people. Our 2021 inquiry found Aboriginal children made up 30 per cent of 10-to-13-year-olds who received a youth justice order in the 10 years to 2019.

The children and young people we as a community should be striving to protect are too often criminalised for past trauma that is entirely beyond their control. A 2019 report by the Sentencing Advisory Council found that: 'The younger children are at first sentence, the more likely they are to have a child protection background'. For children aged 10 to 13 at first sentence, one in two were the subject of at least one child protection report.

Not only is raising the age to 14 important for children’s wellbeing and rehabilitation, it will also help reduce offending and improve community safety. Sentencing Advisory Council research in 2016 confirmed that 'the younger children were at their first sentence, the more likely they were to reoffend generally, reoffend violently, continue reoffending into the adult criminal jurisdiction, and be sentenced to imprisonment in an adult court before their 22nd birthday'.

In 2022, 65 children aged 10 to 13 were arrested in Victoria. Delaying an increase to 14 years for another four years means children like these will be denied the assessment, services and interventions they need to address problem behaviours, they will suffer arrest and police detention and, for many, unnecessary imprisonment on remand.

In a state of more than 6.6 million people, it is hard to fathom that it will take four years for us to provide 65 children a year with the right services.

Failing to act now to set the minimum age to 14 will continue to expose some of Victoria’s most vulnerable children and young people to human rights violations through criminal sanctions that simply do not work.

On Friday, Victoria will take the position of 12 as the minimum age of criminal responsibility to the meeting of the standing council of attorneys general in pursuit of a national consensus. In December, a draft report, which the standing council itself commissioned, recommended raising the minimum age of criminal responsibility to 14 without exceptions.

We ask that Victoria reconsider its position and our state and territory attorneys general use evidence to underpin the decisions that will shape the future of children and young people.

Liana Buchanan is Victoria’s Principal Commissioner for Children and Young People. Meena Singh is Victoria’s Commissioner for Aboriginal Children and Young People.

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