What capacity does a nine-year-old have to judge the full effect of their actions? And how does that differ from a 10-year-old or a 13-year-old?
Nationally, 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 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.
During 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 twenties.
While childhood is a time of learning to be responsible, children should not be held criminally responsible for their actions.
The effects 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 reoffend. The experience of youth detention is a key predictor of later justice system involvement.
Locking up young children does not make the community safer.
In Australia, the disproportionate effect 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 per cent of those aged 10–17 in the general population, but 94 per cent of that age group under supervision. In WA, Indigenous young people made up just 7 per cent of those aged 10–17, but 59 per cent of that group under supervision.
Nine out of ten incarcerated young people at WA’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 stopping 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 which 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.
By Greg McIntyre SC and Dennis Eggington
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 the CEO of Aboriginal Legal Service WA and an adjunct professor at Curtin University.