When we think of children, we think of joyful, innocent human beings trying to discover themselves in the world. Each child deserves to grow up in a fair and safe environment. When it comes to pre-teen children, they are typically aged between nine to eleven years old to understand an action’s repercussions. However, the Victorian State Government, deem that a child as young as ten years old held criminally responsible for their actions. For example, section 345(1) of the Children, Youth and Families Act 2005 (Vic) expresses the parliament’s intent by favouring the police to bring a criminal proceeding before a child. In the same legislation, if you are to read the definition of a ‘child’, children are identified by their age, i.e., age ten until age eighteen. This legislative stipulation increases the vulnerability of children to police arrests, court convictions and imprisonments.
However, let’s break down this issue into segments and ask ourselves:
Where does Australia’s framework of locking up children sit within the international standards? Additionally, what steps are available to prevent unnecessarily criminalising children in Australia?
International Law v Domestic Standards
Australia is a member of the United Nations (UN) and engages with the Universal Declaration of Human Rights (UDHR). Although the UDHR does not create legal obligations for Australia, it can clarify statutory interpretation, particularly where ambiguity exists in domestic law. Australia has not enacted Federal legislation to prevent incarceration for ten-year-old children. However, a relevant body known as the UN Committee on the Rights of the Child recommends countries increase the minimum age of criminal responsibility to fourteen years of age. From a legal aspect, Criminal Law at University teaches us the common law doctrine. That a child younger than fourteen years old is incapable of committing a crime because a child cannot form the necessary criminal intent (i.e., mens rea). Keeping this in mind, each State in Australia holds its legislative regime of criminal law. As we know, legislation triumphs common law, which allows the incarceration of children as young as ten years old (cf. legislation from 1st paragraph). From an international standard, Australia is out of step. The Australian Government will continue to hold children responsible at the same legal standards as adults.
Those standards’ permanent status is unlikely to reduce children’s criminalisation, despite their limited capacity to plan and comprehend the consequences of their actions.
In June 2020, the Human Rights Law Centre reported close to 600 children in 2018-19 aged between 10-13 years old, in detention. Aboriginal and Torres Strait Islander children make up 70% of the 600 children in custody, which is 3% of Australia’s Indigenous population across the 10-13 years old age group. Incarcerating Aboriginal and Torres Strait Islander children disenfranchises from connections to family, culture and the country due to unjust laws and policies. Hence, it is time to support Aboriginal and Torres Strait Islander communities and implement efficient Statutes and practices. Arguably, funding community programs that have a better outcome for these children, in the long run, is also a responsible choice.
Naming and shaming
As stated briefly above, each State and Territory is responsible for passing laws relating to justice and crime at a State level. Amnesty International is currently petitioning the Queensland (QLD) Government to reject a set of harmful amendments to the Youth Justice Act, which will have more kids incarcerated. Yet, amendments to the legislation are just the tip of the iceberg. However, there is a slight irony behind the QLD Governments agenda, as recent statistics from Amnesty International show that QLD’s youth crime has already decreased significantly without tackling the Youth Justice Act. Alongside QLD’s best friend lies the Northern Territory (NT). The State that believes in raising the age of criminal responsibility is illogical. Instead, the NT decides to tackle the bail laws by passing a motion in the Senate, unjustly imprisoning more children. Instead of passing such laws, we need reforms and needs to be in the child’s best interests and not behind human rights standards.
Raising our standards
Our Federal Government is not holding State and Territory Governments to account for failing to meet international standards in protecting children’s rights and liberties. The Federal Government can make a big difference by setting a bridge to close the justice gap. Each State is sitting in the middle of the bridge. Aside from legislative amendments that should boost the age of criminal responsibility from ten to fourteen years, we need a social policy addressing social problems. Since most youth crimes derive from social factors, such as socioeconomic disadvantages, poor education, unemployment, family violence and a lack of family support, all of those circumstances increase the likelihood of pre-teens to develop offending behaviour. If Australia implements an adequate social policy, we could be on our way to better success by mitigating society’s crimes.
Rather than turning to stringent laws on crime and unjust justice policies, a better approach apart from raising the age of criminal responsibility is therapy or initiating public health programs. Such programs will focus on prevention than punishment and better recognise and support the needs of a child. Removing children from the community, family, friends and schools, aids nobody, and locking children up entrench them to develop other mental illness and other health problems.