The discussion around youth incarceration has been brought back to the surface around Australia in recent weeks. Advocates have been lobbying Australian federal and state governments to raise the minimum age of criminal responsibility.
WHAT IS THE 'AGE OF CRIMINAL RESPONSIBILITY'?
In Australia, the age of criminal responsibility is 10 years and older. An alleged offender can be charged by the police and convicted in court. Between 10-14 years old, it must also be proven that the child has sufficient capacity to know that the act/omission was one they ought not to do or make. The police must prove, as an element of the offence charged, that the child had that capacity using evidence such as medical records, school reports, DCP documents or any police interviews with the child.
If an alleged offender is 18 years old and breaks the law, the police can sometimes choose to issue a caution or refer them to a Juvenile Justice Team (JJT), instead of charging the child with a criminal offence. However, police cannot give cautions and refer a juvenile offender to the JJT in respect of certain prescribed Schedule 1 or 2 offences, such as sexual offences, catastrophic offences such as murder and manslaughter, and other offences including assault occasioning bodily harm and grievous bodily harm charges. There is a long list and this is nowhere near exhaustive. Referrals can also be made to the JJT program or Court Conferencing by the Court, but by that stage, the child has already gone to court, been charged and commenced interaction with the criminal justice system.
Generally, if the police charge an individual with a criminal offence while the person is under 18 years old, the charge will be dealt with in the Children's Court. Juvenile charges are also dealt with by the Magistrates Court or superior courts depending on the circumstances, e.g. what other charges they have, the type of charges and whether they have adult co-offenders.
AUSTRALIAN CHILD INCARCERATION STATISTICS
- There were almost 600 children aged 10 to 13 in detention in Australia last financial year 3.
- In the June Quarter of 2019 across Australia 2 :
- 949 young people were in detention on an average night.
- 90% of them were male
- 83% of young people were aged 10-17 (the remainder being 18-20)
- 63% were unsentenced; and
- 53% were Aboriginal or Torres Strait Islander
- In Western Australia on an average night in the June quarter
- The rate of young Indigenous Australians aged 10–17 in detention in WA was 57 per 10,000.
- The non-Indigenous rate was 1.2 per 10,000.
- From June 2015-2019, the Northern Territory consistently had the highest rate of young people in detention on an average night each quarter (11–22 per 10,000 aged 10–17).
WHY ARE ADVOCATES CAMPAIGNING TO RAISE THE AGE?
In 2019, the United Nations Committee on the Rights of the Child recommended 14 years as the minimum age of criminal responsibility.
Child development studies have found that children under 14 often lack impulse control, and have poorly developed capacity to understand consequences. The earlier a child enters the justice system, the more likely they are to have repeat interactions with it.
Social, community and family factors such as poverty, neglect, domestic violence or disability also have a large impact on incarceration rates. A 2018 study found nine out of ten young people in Western Australian youth detention were severely impaired in at least one area of brain function.
There is also the issue of the high rate of incarceration of Indigenous youth. Just over half of all Australian children imprisoned on any given night are Indigenous.
In WA, the Banksia Hill Detention Centre is the state's only juvenile detention facility. The facility houses both boys and girls from 10-18 years old from all over the state, meaning offenders from regional areas are even more isolated from their families and communities. There has been a history of incidents at this facility and a large number of young people there have reported feeling unsafe. A 2017 report4 found that education services delivered at Banksia Hill did not meet community standards. Young people in custody should receive a comparative standard of education to all in the education system, and in many cases, inmates require higher educational needs.
Source: WA Today – Petty crimes, private jets and prison: How the WA government wastes millions punishing regional kids1
WHAT CHANGES HAVE BEEN RECOMMENDED TO REDUCE THE RATES OF YOUTH INCARCERATION?
- Increased funding for the Department of Child Protection (DCP) to enable them to provide more support services for families before they go into poverty & to prevent their children offending.
- An increased incentive for police officers to engage the JJT before charging persons under 18 for criminal offences.
- Increased promotion and funding for the Remote School Attendance Strategy (RSAS), WA Police and Community Youth Centres (PCYC) or other organisations who seek to create safe spaces for disadvantaged youth or provide basic essentials such as food, water, education or recreational activities.
WANT TO KEEP READING?
There are a number of useful resources and articles on this topic if you are interested in further reading:
- 1Petty crimes, private jets and prison: How the WA government wastes millions punishing regional kids
- 2Youth Justice in Australia 2018–19 | Australian Insitute of Health and Welfare
- 3 Youth Detention Population in Australia 2019 | Australian Insitute of Health and Welfare
- 4 Inspection of Banksia Hill Detention Centre | Office of the Inspector of Custodial Services
- Age of Criminal Responsibility | Legal Aid Western Australia
- 'Prison is no place for a child': Australia to discuss raising the age of criminal responsibility
- Ten-year-olds do not belong in detention. Why Australia must raise the age of criminal responsibility
- The push to raise Australia's minimum age of criminal responsibility
- Minimum Ages of Criminal Responsibility Around the World
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