By Greg McIntyre SC & Dennis Eggington, National Indigenous Times, 7 September 2021
What capacity does a 9-year old have to judge the full impact of their actions? And how does that differ from a 10-year old, or a 13-year old?
Across Australia, we arrest and incarcerate children as young as 10. This is despite the overwhelming evidence, that 14 is the minimum age, developmentally and neurologically, that children could possibly be held criminally responsible for their actions.
There are in fact compelling developmental arguments outlined by the United Nations Committee on the Rights of the Child to suggest this age should be higher.
Throughout the teenage years, the prefrontal cortex is still developing. This is the decision-making part of the brain, responsible for a person’s ability to control impulses and think about the consequences of their actions.
We now know that our brains grow and evolve from birth, through childhood, through adolescence, in fact until our 20's.
While childhood is a time of learning to be responsible and learning to take responsibility, children should not be held criminally responsible for their actions.
The consequences of imprisoning young children extend well beyond the futility of this in terms of what we know about children's developmental capacity. The younger the age of a child when they come into the justice system, the greater the likelihood they will go on to re-offend. The experience of youth detention is one of the key predictors of longer term justice system involvement.
Locking up young children does not make the community safer.
In Australia, the disproportionate impact of our criminal justice system on Aboriginal and Torres Strait Islander people means that we overwhelmingly incarcerate Aboriginal and Torres Strait Islander children.
On an average day in the Northern Territory in 2019–20, Indigenous young people made up 44% of those aged 10–17 in the general population, but 94% of that age cohort under supervision. In Western Australia, Indigenous young people made up just 7% of those aged 10–17 in the general population, but 59% of that cohort under supervision.
Nine out of ten incarcerated young people at Western Australia’s Banksia Hill youth detention centre have some form of neuro-disability. Rather than receiving support in the community, too many young people are 'managed' in youth prisons.
Children who come into contact with the justice system need access to support, housing, education, community, culture, sport, care and a sense of belonging- not ongoing punishment.
Imprisoned children have often experienced serious domestic violence, disconnection from community, neglect, physical and mental abuse, homelessness and poverty. These interwoven layers of crises and trauma, are exacerbated by contact with the criminal justice system.
As patrons of the Justice Reform Initiative, we are working to reduce over-incarceration in Australia and promote a community in which disadvantage is no longer met with a default criminal justice system response.
Jailing is failing all of us, most particularly our young people. Raising the minimum age of criminal responsibility to 14 is an essential step to stop young people entering the criminal justice system and becoming trapped in a lifelong struggle.
We urge Australian policymakers to follow the lead of the ACT government and countries around the world who have recognised the human cost of children's incarceration, recognised the urgent need to build genuine pathways outside of the justice system for young people, and accepted the compelling medical evidence, to raise the age of criminal responsibility.
Greg McIntyre SC is an executive board member of the Law Council of Australia and a former president of the Law Society of WA.
Dennis Eggington is CEO Aboriginal Legal Service Adjunct Professor Curtin University