Trevitt, Sophie --- "Let kids be kids: Raising the age of criminal responsibility" [2020] PrecedentAULA 73; (2020) 161 Precedent 38

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LET KIDS BE KIDS

RAISING THE AGE OF CRIMINAL RESPONSIBILITY

By Sophie Trevitt

For most of us who have children, teach children, live with children or know children, the idea that misbehaving children are criminals is absurd. Research undertaken this year by Change the Record and the Australia Institute revealed only 7 per cent of Australians knew that children as young as 10 years old could be stopped by the police, arrested, hauled before a court, and thrown into youth detention centres for their ‘crimes’. Instead, the majority of Australians believed a child had – and ought – to be at least 14 years old to be held criminally responsible.^[1]

The hypocrisies and inconsistencies in the law as it applies to children are profound.

On the one hand, all jurisdictions consider children under 18 to be too immature to make decisions about consuming alcohol or voting in general elections. On the other hand, they are treated as sufficiently mature to be held criminally responsible – precipitating potentially lifelong consequences for employment, citizenship, education and health.^[2] All states and territories deem children under 16 to be insufficiently mature to consent to sexual activities, yet sufficiently mature to understand the content and consequences of their actions in a criminal court. It is recommended that children shorter than 145cm (the average height of an 11-year-old Australian child) use a booster seat in a vehicle because of their immature physiological development.^[3] And yet despite the medical evidence that indicates their neurological development is not complete until 25,^[4] we see fit to hold them criminally responsible in the same way as adults two or three times their age.

There is overwhelming medical evidence that children do not have the cognitive capacity to be reasonably held criminally responsible until they are at least 14 years old.^[5] There is mounting evidence that criminalising a child can have damaging life-long implications for that child’s future health and wellbeing – even contributing to their early death.^[6] Putting a child in youth detention separates them from all of the protective factors relied upon to grow and develop. It separates children from their families and community. It removes them from the education system. It takes them away from their peers and normal social development. It puts them at a greater risk of graduating to adult prison and struggling with mental illness, unemployment and homelessness later in life.^[7] This is why a coalition of nine medical, legal and human rights organisations launched the campaign to #RaiseTheAge in June 2020 and called on the Council of Attorneys-General (CAG) to change the law to keep young children out of the criminal justice system.

LAUNCHING THE #RAISETHEAGE CAMPAIGN

On 26 June 2020 we launched our national campaign to raise the age on Channel 10’s The Project. We armed the campaign with the medical expertise of organisations including the Australian Medical Association, Royal Australasian Physicians, and Australian Indigenous Doctors Association; the legal expertise of the National Aboriginal and Torres Strait Islander Legal Services, Law Council, and Human Rights Law Centre; and the frontline experience of Change the Record’s member organisations.

Over the following weeks, over 130,000 Australians added their voices to call for reform. We attracted the support of celebrities, academics, musicians and members of the public who shared photos of themselves at 10 years old, and called on their MPs to change the laws so that children are supported in the community rather than dragged into the criminal justice system.

We met with dozens of MPs, many of whom expressed in-principle support for the change in law but remained apprehensive of a populist law-and-order political backlash.

FAILURE OF LEADERSHIP

On the day that counted, the CAG meeting on 27 July 2020, the Attorneys-General failed to show leadership and instead deferred making a decision on raising the age for another year. They published one line on the decision noting the work done to date, and the need for ‘further work to occur regarding the need for adequate processes and services for children who exhibit offending behaviour’.^[8]

This begs the question of what the CAG has been doing since 2018 when the issue of raising the age was first put before them.

CAG deliberations have been extremely opaque. No submissions have been made publicly available (although many organisations have voluntarily published their submissions online).^[9] The ‘review’ undertaken by the Western Australian working group, tasked to collate the evidence contained in submissions and make recommendations, is also secret. We do not know what ‘further work’ the CAG will undertake in the next 12 months, and questions submitted on notice by Senator Siewert have not been responded to.

WHAT CHILDREN NEED AND THE FAILURES OF ADULTS

The travesty of child imprisonment is a result of the failures of adults: adults in the child protection system; adults in the police force; adults in schools; and adults in political offices around the country.

These same adults all have a role to play in the solutions.

Child ‘offending’ can be understood as behaviours spread along a continuum – the vast majority takes place at one end and is relatively minor, for example, stealing a chocolate bar, shoplifting a basketball cap, or breaching bail conditions like curfews. Although most children under 14 who are in contact with the criminal justice system fall on the lower end of this continuum, political rhetoric tends to focus on the rare, serious or violent behaviour that takes place at the opposite end.

A child who has done things that are seriously wrong has almost always been seriously let down, and those are the failures that the system should respond to. When we imprison children, we are letting responsible adults off the hook. Many blame the parents, but what about all of the other adults, including those who are paid to act in the best interests of our children, in that child’s life?

Where is the accountability for the adults who suspend, expel, ignore or fail to engage young children struggling at school? This is illustrated in the documentary In My Blood it Runs^[10] which tells the story of young Arrentre/Gawa boy Dujuan who comes perilously close to a stint in Don Dale. Dujuan is a funny, articulate, curious, smart young fella who sees the inconsistencies and inequalities in his community and pushes back against them. He knows the Balanda way he is taught at school isn’t the truth of his history and his ancestors. He is made to feel like a failure in the classroom and disengages. Conversely, when Dujuan is taught in his own language, he thrives.

Where is the accountability for the child ‘protection’ systems which disproportionately rip Aboriginal and Torres Strait Islander children from their homes and their families? A Victorian study into ‘crossover kids’ shows that children who had experienced residential care were approximately twice as likely as children who were not known to child protection to be sentenced for:

• property damage (66 per cent compared to 29 per cent);

• bail-related offences (50 per cent compared to 22 per cent);

• drug offences (23 per cent compared to 11 per cent); and

• weapons offences (23 per cent compared to 10 per cent).^[11]

Perhaps even more staggeringly, the same study found that the majority of children sentenced to custody were already known to child protection.^[12] So we have to ask: what is going so wrong in the child protection system for those children to end up in prison cells?

In our meetings with MPs leading up to the CAG, the most common question parliamentarians asked was ‘what will we do with the 10- to 14-year-olds if we don’t send them to prison?’

The better question is: what did we fail to do that saw these children pushed into prisons, and what must we do differently to support them to grow and thrive?

How do we keep these children engaged at school? How do we support families who are struggling? What kind of mental health supports do we have in place for kids – and parents – who have experienced trauma? How can we provide adequate housing and social security so that families can meet their needs?

Parliamentarians want to focus on the fictitious child psychopath when they should be focusing on the hundreds of kids in their electorates who need somewhere safe and secure to live. On the First Nations kids who deserve to have their cultures and languages recognised and celebrated at school. On the kids who would love learning if they were taught in an accessible way. These are the real solutions to the parliamentarians’ question.

THE ROAD AHEAD

The road to law reform is long and often resistant to reason. It should be simple. Each state and territory should modify a handful of clauses in their Criminal Code (or equivalent)^[13] – bringing their laws in line with international recommendations^[14] – and stop throwing young children into prison. They should do what they should have been doing in the first place and invest the extraordinary amounts of money wasted on imprisoning children in social, health, housing and educational supports to keep families strong and help children thrive.

The ACT has made a small but welcome step forward, declaring its support for raising the age but stopping short of changing the law. Other states and territories are more reluctant. In the months ahead we will see parliamentarians confect awful, fictitious hypotheticals about ‘child psychopaths’ to justify the imprisonment of children. States that are more sympathetic to reform will engage in a complex timetabling exercise around elections to try and minimise any risk of political backlash. And, as they go through the motions, real children and their families will pay the price.

As practitioners, we have a role to play in shining a light on these political games and calling for the law reform our clients deserve. We have a responsibility to educate others on what the law is and how it fails some of the youngest and most vulnerable members of our community. To explain to politicians why the doctrine of doli incapax is broken, and leaves children languishing on remand as their lawyers prepare for doli hearings; often to never be sentenced to time in detention at all.^[15] To explain with compassion and understanding to members of the public that locking up children does not keep them, their homes or their families safe.

Sophie Trevitt is a lawyer and the Executive Officer of Change the Record, a member of the Raise the Age campaign steering committee. EMAIL [e-mail] TWITTER @sophietrevitt WEBSITE raisetheage.org.au/changetherecord.

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^[1] S Trevitt and B Browne, Raising the Age of Criminal Responsibility (Joint discussion paper, July 2020) <https://drive.google.com/file/d/1SX5e0YQ0JPjLb78el8_Hiq_QQobUDwk5/view>.

^[2] Australian Medical Association (AMA), ‘AMA submission to the Council of Attorneys-General – Age of Criminal Responsibility Working Group Review’ (Submission, 2 February 2020) <https://ama.com.au/system/tdf/documents/Age%20of%20Criminal%20Responsibility%20-%202020%20-%20Working%20Group%20Review.pdf?file=1&type=node&id=51897>.

^[3] Royal Children’s Hospital Melbourne, ‘Safety: Child car seats’ (Fact sheet, May 2019) <https://www.rch.org.au/kidsinfo/fact_sheets/Safety_Child_car_seats/>.

^[4] Ibid.

^[5] Australian Medical Association and Law Council, Minimum Age of Criminal Responsibility (Policy statement, 17 December 2019).

^[6] Ibid.

^[7] Ibid.

^[8] Council of Attorneys-General, Communiqué July 2020, <https://www.ag.gov.au/about-us/publications/council-attorneys-general-communique-july-2020>.

^[9] For example, NATSILS, ‘Submission to the Council of Attorneys-General Age of Criminal Responsibility Working Group Review’ (Submission, 28 February 2020) <http://www.natsils.org.au/portals/natsils/submission/NATSILS%20submission%20to%20CAG%20Inquiry%20into%20age%20of%20criminal%20responsibility%20Feb%202020%20final1b66.pdf?ver=2020-03-05-112113-360> Law Council of Australia, ‘Council of Attorneys-General – Age of Criminal Responsibility Working Group Review’ (Submission, 2 March 2020) <https://www.lawcouncil.asn.au/resources/submissions/council-of-attorneys-general-age-of-criminal-responsibility-working-group-review>; AMA, above note 2.

^[10] In My Blood it Runs (Directed by M Newell, Closer Productions, 2020).

^[11] Sentencing Advisory Council Victoria (SACV), ‘Crossover Kids’: Vulnerable Children in the Youth Justice System: Report Two (Report, 2020). <https://www.sentencingcouncil.vic.gov.au/sites/default/files/2020-03/Crossover_Kids_Report_2_Factsheet.pdf>.

^[12] SACV, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System: Report One (Report, 2019). <https://www.sentencingcouncil.vic.gov.au/sites/default/files/2019-08/Crossover_Kids_Factsheet.pdf>.

^[13] Crimes Act 2002 (Cth), ss4 and 7; Criminal Code 2002 (ACT), ss25–26; Children (Criminal Proceedings) Act 1987 (NSW), s5; Young Offenders Act 1997 (NSW), s4; Criminal Code Act 1983 (NT), ss43 and 48; Criminal Code Act 1899 (Qld), s29; Criminal Code Act 1899 (Qld), ss175–176; Young Offenders Act 1993 (SA), ss4–5; Criminal Code Act 1924 (Tas), s18; Children Youth and Families Act 2005 (Vic), s344; Criminal Code Act Compilation Act 1913 (WA), s29.

^[14] Committee on the Rights of the Child, Concluding observations on the combined fifth and sixth periodic reports of Australia, UN Doc CRC/C/AUS/CO/5-6 (1 November 2019), para 48.

^[15] SACV, Children Held on Remand in Victoria: A Report on Sentencing Outcomes (Report, 29 September 2020). <https://www.sentencingcouncil.vic.gov.au/publications/children-held-on-remand-in-victoria>.