Renewed calls to raise minimum age of children in prison

30th Sep 2021

With children in prison as young as 10 years old in Australia, there is a growing push for federal, state and territory politicians to finally raise the age of criminal responsibility to 14.

Such children convicted of criminal offences, along with teenagers aged under 18, are sent to juvenile correctional centres that are separate from adult prisons.

Forty-eight legal, medical and human rights organisations and 31 United Nations member states have called on federal, state and territory governments in Australia to raise the age of criminal responsibility to 14.

Thousands of children under 14 face criminal charges each year

Around 500 children in prison who are detained each year in Australia are younger than 14 years of age, and 65% of these children are Aboriginal and Torres Strait Islander children.

Several thousand children under 14 are estimated to face court on criminal matters each year. Children up to the age of 18 can be charged and convicted of criminal offences in the children’s courts, where special laws and sentencing principles apply to act in the child’s best interests.

Young children not cognitively capable of criminal responsibility

Around the world, most countries set the age at which young lawbreakers can be jailed at 14 years. Medical evidence shows that children as young as 10 act on whim and impulse, are unable to consider the consequences of their actions, and struggle to understand cause and effect.

According to the Law Council of Australia, research shows that the brain development of young children does not allow them to be able to reflect sufficiently before acting, or to comprehend the consequences of criminal action.

Doli incapax principle – children unable to possess criminal intent

Australian law, as with most countries, operates on the principle of doli incapax, which means that the law presumes a child does not have the knowledge required to have criminal intent. In NSW, this law is outlined in s5 of the Children (Criminal Proceedings) Act 1987, which states that no child under 10 years of age can be guilty of an offence.

Raising the age to 14 would remove the need for courts to consider the confusing and complex doli incapax presumption. When younger children are being tried, there are often protracted court arguments over whether a child knew their conduct was wrong, while the child languishes in detention waiting for the result.

How do Australians feel about children in prison at 10 years old?

Public opinion on this matter is divided. A survey by the Australia Institute found that only one in ten Australians knew that the age of legal incarceration in Australia is only 10 years old. Two-thirds of survey respondents thought it was 14 or above. Despite this, one-third opposed raising the age to 14.

Attorneys-General unable to agree on minimum legal age of imprisonment

The lack of action on this problem to date by state and territory and federal governments may be due to the fact that politicians are wary of being labelled as ‘soft on crime’. After discussing the issue of children in prison in July 2020, a meeting of the nation’s Attorneys-General failed to reach agreement.

The then Federal Attorney-General Christian Porter said he wasn’t ‘an enthusiast’ about changing the age, as prosecutors already face a higher bar in having to prove that those aged between 10 and 14 years know their conduct is wrong.

NSW Attorney-General Mark Speakman said the decision needs to be in the best interests of the community. Only the ACT has pledged to raise the age to 14 while the NT has agreed in principle to raise the age to 12.

Even though Australia’s continuing inaction on raising the age of criminal responsibility is out of step with international human rights law and international standards, in July 2021 it was reported that the country’s Attorneys-General have again stalled on reaching agreement.

Minimum age for criminal responsibility varies throughout the world

In the UK, the age of criminal responsibility is 10 years – an issue that was highlighted in 1993 when two 10-year-old boys were charged for and convicted of the murder of two-year-old James Bulger.

In the US state of North Carolina, the age of criminal responsibility is just 6 years, while many other US states have no minimum age at all.

Ongoing negative impact of prison on young children

According to the Australian Institute of Health and Welfare, the worst offences committed by children aged 10 to 14 involve violent crimes, such as assault and sexual assault. However, the bulk of crimes involve theft, burglary and property damage.

Significant evidence points to children being more likely to re-offend if they are imprisoned.

Jailing children sets them on a path to a life of crime that sees them in and out of jail. Their only friends will be other marginalised young people for whom crime is a way of life.

There has to be a better approach to divert these youngsters from crime, rather than simply locking them up. Alternative procedures need to be established to help prevent children from re-offending.

It may be that a child who commits a crime has had a history of family or socio-economic problems, such as abuse or acute poverty. Treating the underlying problem is likely to result in a drop in recidivism.

This is an edited version of an article first published at Stacks Law.

Anneka Frayne is the Director of Stacks Law Firm in Tamworth, working in family law, wills and estates and disputes and litigation.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Criminal justice Children's rights