Reforming the Age of Criminal Responsibility: Alternatives for First Nations Juvenile Offenders


The minimum age of criminal responsibility around Australia is just 10 years old, meaning that children this young can be arrested, strip searched, interviewed by police, made to stand trial and imprisoned. Imagine yourself at 10 years old and picture that. Such a low age is inconsistent with neuroscientific evidence and Australia’s binding obligations under international human rights law.[1] It also has a grossly disproportionate impact on First Nations children, who suffer an enduring overrepresentation in the justice system. In July 2020, the Council of Attorneys-General considered whether to raise the age of criminal responsibility. However, they concluded that further work regarding the need for adequate services and processes for juvenile offenders was required before any reform would occur.


My honours thesis analyses such potential services and processes for overrepresented First Nations juvenile offenders. It contends that Australia’s minimum age of criminal responsibility should be raised to at least 14, without a qualification for serious crimes. The significant funding spent on imprisoning First Nations children should then be ‘reinvested’ into services that address the underlying drivers of crime in communities, through an initiative known as Justice Reinvestment.


The enduring overrepresentation of First Nations youth in Australia’s criminal justice system is a human rights issue that urgently needs to be addressed. The United Nations Committee on the Rights of the Child has periodically reviewed Australia’s compliance with the United Nations Convention on the Rights of the Child. It has consistently recommended that Australia consider recent neuroscientific evidence and raise the age of criminal responsibility ‘to an internationally acceptable level’ of at least 14.[2] The United Nations has also been critical of the enduring overrepresentation of First Nations youth in the justice system.


Although the figures vary over time and jurisdictions, First Nations children have been found to be 17–28 times more likely than non-Indigenous children to be in youth detention on an average night. In fact, at one point, all children detained in the Northern Territory were First Nations children.[3] The United Nations Special Rapporteur visited Australia in 2017 to examine the state of human rights for First Nations people, and ‘found the routine detention of young Indigenous children the most distressing aspect of her visit’.[4] She concluded:


“Aboriginal and Torres Strait Islander children are essentially being punished for being poor and, in most cases, prison will only perpetuate the cycle of violence, intergenerational trauma, poverty and crime”.[5]


It is especially distressing considering that detention is no place for rehabilitation and, indeed, no place for children. Numerous inquiries into detention centres across Australia extensively reference the physical, emotional, verbal and racial abuse endured by juvenile detainees. The maltreatment of children in detention in Australia is yet another clear violation of binding international human rights law, which prohibits the degrading, harsh, cruel or inhuman treatment of detainees.[6]


Further, detention is ineffective and expensive; detaining a single child costs up to $200,000 annually and has been shown to actually increase recidivism rates.[7] In 2016 in Victoria, the reoffending rate for all people was 45%.[8] Shockingly, the reoffending rate for children aged 10–14 was 81%.[9] Evidence suggests that, due to the neuroplasticity that occurs during puberty, juvenile offenders generally ‘grow out of crime’ if exposed to positive responses. But when exposed to negative responses – like detention – children who may have otherwise avoided any further criminal involvement may become entrenched in the criminogenic justice system. So why are we still imprisoning children?


The age of criminal responsibility should be raised, without qualification, and an alternative to detention that focuses on rehabilitation, reintegration and community building should be implemented. Although some critics fear that raising the age without a qualification for serious crimes would be unwise, juvenile offenders often commit minor, non-violent crimes, and ‘[i]nternational experience demonstrates that raising the age of criminal responsibility to 14 will not result in adverse effects on crime rates’.[10] Although serious offending by juveniles does require a response, this response should not lie within a justice system that does not work.


Instead, the exorbitant amount spent on imprisoning First Nations youth should be reinvested into communities, programs, services and frameworks that address the underlying drivers of criminality. To address First Nations overrepresentation, culturally appropriate and innovative responses are required. Justice Reinvestment offers just that. It places First Nations self-determination, culture, knowledge and authority at the centre of its design. Justice Reinvestment allows First Nations communities to create their own responses to offending and implement strategies to shift youth away from the criminal justice system.


It is a community-led, place-based, data-driven and economically responsible approach to justice reform. The response will therefore look different across communities as the aim of Justice Reinvestment (JR) is to identify and address the particular drivers of crime in each community. Examples of services and strategies which may receive the reallocated funding include intensive case management, mentoring, counselling, housing, family-based intervention, cultural camps and educational programs.


The most advanced JR initiative in Australia is the Bourke Maranguka Justice Reinvestment program. Imprisoning First Nations juvenile offenders in the NSW town of Bourke was costing approximately $2.2mil per year, with 21% of Bourke’s First Nations youth having been exposed to the justice system. To address First Nations juvenile offending, the Bourke Aboriginal Community Working Party partnered with Just Reinvest NSW to create a whole-of-government and whole-of-community agenda to reduce juvenile offending.


In the first stage of the Maranguka project, trust was built between the First Nations community and the service providers: for example, the police, health, education and housing services. In the second stage, data was collected on local crime and wider socioeconomic factors to identify areas and strategies for reform. Then, this data was provided to the community and economic modelling was used to ascertain the savings associated with the reform strategies identified. During 2017, with operational costs of just $0.6mil, the Maranguka Justice Reinvestment resulted in an estimated gross impact of $3.1mil.[11] Youth offending between the top five offence classifications had reduced by 38%, with a 27% reduction in breaches of bail, alongside increased engagement in Bourke’s education system between 2015 – 2017.


Ostensibly, Justice Reinvestment has had a considerably positive impact on the Bourke community, providing a promising alternative to detention which should be implemented nationwide regardless of a decision to raise the age of responsibility. However, raising the age would allow the savings generated from youth decarceration to be reallocated to a national Justice Reinvestment framework. Such a framework could provide a rehabilitative alternative to detention for First Nations juvenile offenders that would no longer be criminally responsible,[12] while also becoming the preferred option for those above the revised age that still would be. Unfortunately, however, most governments are non-committal to raising the age.


The system is not working, and children especially First Nations children are suffering. Reform is urgently required. Justice Reinvestment offers an opportunity to shift the focus away from ineffective carceral punishments towards evidence-based initiatives that focus on rehabilitation and reintegration. Unlike previous initiatives that have been imposed by governments, Justice Reinvestment centres First Nations’ governance and culture. It provides a meaningful opportunity to reduce offending and re-offending in First Nations communities to improve the lives of children and community wellbeing. Implementing Justice Reinvestment throughout Australia will be complex, but it will also be invaluable.


References:

[1] Committee on the Rights of the Child, General Comment No 24: Children’s Rights in Juvenile Justice, UN Doc CRC/C/GC/24 (18 September 2019).

[2] Committee on the Rights of the Child, Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Australia, 82nd sess, UN Doc CRC/C/AUS/CO/5-6 (1 November 2019) 14.

[3] Australian Institute of Health and Welfare, Youth Detention Population in Australia 2020 (Cat No JUV 135) vi; Law Council of Australia, Council of Attorneys General – Age of Criminal Responsibility Working Group Review, (2 March 2020) 16.

[4] Victoria Tauli-Corpuz, Report of the Special Rapporteur on the Rights of Indigenous Peoples on Her Visit to Australia, UN Doc A/HRC/36/46/Add.2 (8 August 2017) [74].

[5] Ibid [76].

[6] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 37(a). It is also inconsistent with United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, 45th sess, GA res 45/113, UN Doc A/RES/45/113 (2 April 1991) arts 31, 34, 37.

[7] Victoria Tauli-Corpuz, Report of the Special Rapporteur on the Rights of Indigenous Peoples on Her Visit to Australia, UN Doc A/HRC/36/46/Add.2 (8 August 2017).

[8] Sentencing Advisory Council, Reoffending by Children and Young People in Victoria (Victoria State Government, December 2016) 6.

[9] Ibid.

[10] Justice Reinvest NSW (n 3) 12.

[11] KPMG, Maranguka Justice Reinvestment Project (Impact Assessment, 27 November 2018) 24. Please also refer to this report for a more detailed examination of the Maranguka Justice Reinvestment project.

[12] For example, if the age is raised to 14, children between 10 – 14 will no longer be able to be found as criminally responsible and cannot be incarcerated.


Image: Chris Devers, Flickr


Kat Jukes is a penultimate year Law/Arts student majoring in Politics and International relations. She is currently completing her Honours Thesis on the need to reform Australia’s minimum age of criminal responsibility and implement rehabilitative alternatives to detention for First Nations juvenile offenders. Kat is particularly passionate about First Nations rights and access to justice, as well as how these can be furthered through law reform.