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Law Week – Time to treat children with a restorative justice and welfare approach

This Law Week, it’s time to talk about the need to raise the age of criminal responsibility to better support young children, writes Jesuit Social Services’ Media Relations Manager KATHRYN KERNOHAN.

This week is Law Week (May 14-20), an opportunity for members of the community to learn more about elements of the legal system as well as the court process.

It is also a chance to shine a spotlight on some of the legislative reform that we would like to see in order to create safer communities.

Jesuit Social Services has long lobbied for a raising of the age of criminal responsibility, which is currently 10 years of age in all Australian jurisdictions.

In response to the recommendations of the Royal Commission into the Protection and Detention of Children in the Northern Territory, the Northern Territory recently committed to raise the age of criminal responsibility from 10 to 12.

Our ultimate goal is for the age of criminal responsibility to be raised to 14 years, but we have welcomed the Territory’s commitment, and urged other states and territories to follow.

Prison is no place for a primary school aged child and Australian states and territories having the capacity to charge and send children as young as 10 to prison is out of step with many other countries.

The United Nations Convention recommends that 12 is the absolute minimum age that a child can be held criminally responsible, and according to an international study of 90 countries, 68 per cent had a minimum criminal age of 12 or higher.

This includes an age of criminal responsibility of 12 in Canada and the Netherlands, 13 in France and 14 in countries including Japan, China and Germany.

This is an important issue because we know that children first detained between the ages of 10 and 14 are more likely to have sustained and frequent contact with the justice system throughout their lives, compared to people first supervised at older ages.

According to the Australian Institute of Health and Welfare, a total of 97 children under the age of 15 were held in youth detention in Victoria in 2015-16.

This is a highly vulnerable group of children that are more likely to be exposed to risk factors such as mental illness, drug and alcohol abuse, homelessness and child abuse and neglect than children who do not have contact with the justice system.

The links between the child protection and youth justice systems are also clear. Research previously conducted by Jesuit Social Services showed that more than three quarters (78 per cent) of children aged between 10 and 12 on youth justice orders, or who had experienced remand, were known to child protection.

Another important factor in the calls to raise the age of criminal responsibility is that current policies have a pronounced impact on Aboriginal and Torres Strait Islander children.

Across the country, on average, Aboriginal and Torres Strait Islander are more likely to come into contact with the justice system compared to non-Indigenous young people.

Last year the Australian Institute of Health and Welfare’s Youth justice in Australia publication reported that Aboriginal and Torres Strait Islander young people are 12 times more likely to be in detention than non-Indigenous young people.

This significant overrepresentation in the youth justice system could be partly addressed by raising the age of criminal responsibility to ensure young children are treated with a restorative justice and welfare approach instead of a punitive response.

Evidence about children’s brain development also clearly demonstrates that children under 12 years lack the necessary capacities for full criminal responsibility – and many do not gain these capacities until they are older.

In our recent submission to the 2018-19 Victorian State Budget one of our key recommendations was for the Victorian Government to raise the age of criminal responsibility to 14 years.

This is a call that has been echoed by doctors, lawyers, health and human rights experts across the country.

Children under the age of 14 who have contact with the justice system require an age-appropriate, culturally-specific and welfare-focused response.

For example, a program like Navigator works to connect young people who may be at risk of disconnecting from school with education, and Barreng Moorop provides targeted and intensive support to young Aboriginal people aged between 10 and 14 who may be at risk of anti-social behaviour.

The best way to address anti-social behaviour among young people is to address the factors behind their behaviour and connect them with education, family and the community.

Raising the age of criminal responsibility is a key factor in ensuring evidence-based approaches, not punitive responses, support this.