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

Such children, 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 and state governments in Australia to raise the age of criminal responsibility to fourteen.

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 per cent of these children are Indigenous.

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.

Brains of young children not sufficiently developed to bear criminal responsibility

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

The Law Council of Australia says research shows the brain development of young children does not allow them to be able to reflect sufficiently before acting, or to comprehend the consequences of a criminal action. (See Commonwealth, states and territories must lift minimum age of criminal responsibility to 14 years, remove doli incapax, Law Council of Australia, June 2019.)

Doli incapax principle says children unable to possess criminal intent

Australian law, as in most countries, operates on the principle of doli incapax, which means the law presumes a child does not have the knowledge required to have criminal intent. In NSW this law is outlined in section 5 of the Children (Criminal Proceedings) Act 1987, which states that no child under ten 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. This often leads to 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 the age of ten?

Public opinion on this matter is divided. A survey by the Australia Institute found only one in ten Australians knew the age of legal incarceration in Australia is only ten. Two-thirds of survey respondents thought it was 14 or above.

Despite this, one third opposed raising the age to fourteen. (See Raising the age of criminal responsibility, The Australia Institute, July 2020.)

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

The lack of action on this problem to date by state, 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" to change the age, as prosecutors already face a higher bar in having to prove that those aged between ten and fourteen knew their conduct was 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 fourteen. The Northern Territory has agreed in principle to raise the age to twelve.

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. (See One year on, MPs still can't agree on laws to stop jailing 10-year-olds, SMH, 27 July 2021.)

Minimum age for children to be sent to prison varies throughout the world

In the UK the age of criminal responsibility is ten, an issue that was highlighted in 1993 when two 10-year-old boys were charged 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 six, while many other US states have no minimum age.

Ongoing negative impact of prison on young children

According to the Australian Institute of Health and Welfare, the worst offences committed by children aged ten to fourteen involve violent crimes, such as assault and sexual assault. The bulk of crimes involve theft, burglary and property damage. (See Australia's children, Australian Institute of Health and Welfare, April 2020.)

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

Jailing children only sets them on a path to a life of crime that sees them in and out of jail. Their only friends are 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 reoffending.

It may be that a child who commits a crime has had a history of family or societal problems, such as abuse or acute poverty. Treating the underlying problem is likely to result in the reoffending statistics dropping.

Anneka Frayne
Criminal law
Stacks Law Firm

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