Key Points
- Attorneys-general have been reviewing the minimum age of criminal responsibility since 2018.
- The Human Rights Law Centre has described it as "five years of delays and glacial progress".
- A report recommended a nationwide increase from 10 to 14 years but a united approach has not been taken.
Five years ago, but advocates say children as young as 10 are still dealt with in a way that can cause serious long-term harm.
While a report released in 2020 as part of the review process recommended the federal, state and territory governments raise the minimum age to 14 years, without exception, this advice has not been actioned.
After what advocacy groups described as "five years of delays and glacial progress" many had expected to get a better idea of where each state, territory and the federal government stood on the issue last week but have been left disappointed.
Children who face criminal charges may spend time in juvenile detention facilities. Source: AAP / Glenn Campbell
Attorneys-general from across the country meet
Attorneys-general from across the country, including federal Attorney-General Mark Dreyfus met on 1 December as part of the Standing Council of Attorneys-General (SCAG). The MACR is a standing item to be considered by the council.
"The SCAG can change this when it is expected to decide on the minimum age of criminal responsibility (MACR) in Australia," the Human Rights Law Centre had said in its statement in the lead-up to the meeting.
The topic was raised in the meeting, but no decision was made.
SBS News contacted a SCAG representative but they did not respond to questions about what progress the council had made on the MACR.
A communique from the December SCAG meeting said the main item of interest was the release of a report that could inform how individual states might deal with children in the case of a slightly higher MACR.
A communique from the Standing Council of Attorneys-General meeting on 1 December detailed the outcomes of the meeting, including those relating to the minimum age of criminal responsibility. Credit: www.ag.gov.au
While the spokesperson did not say why the Commonwealth's own MACR has not been raised from 10 years old, they said, "We have already seen welcome moves by the Northern Territory, Victoria and the ACT."
Maggie Munn is national director of Change the Record, which is campaigning to raise the age.
They said, "If the Federal Government was as committed to this law reform as they claim to be, then they could have taken leadership and reformed Commonwealth laws a long time ago, and set a precedent for states and territories to do the same."
The minimum age of criminal responsibility
Over the years the MACR has been jointly considered, states and territories have started setting their own policies.
In Australia children as young as 10 can be jailed but advocates say treating children as criminals, especially incarcerating them, is detrimental to their health and wellbeing. Source: Getty / Belinda Howell
The Northern Territory became the first Australian state or territory to lift the age of criminal responsibility,
The MACR remains 10 years of age in all other states and territories and on a Commonwealth level.
While , the state’s age of criminal responsibility remains 10 years of age.
More than 100 organisations have signed an open letter calling for the Commonwealth and every state and territory to "act in line with medical expert advice and international standards for child development".
The government 'needs to act'
Munn said those advocating a raise to the MACR had never expected "such an important step in protecting and promoting the rights of young children would take so long".
"The delays from 2018 onward are an indication that governments lack political will to make a decision that affects not just the lives of incarcerated children, but their families and communities as well."
Munn said reports, research and lived experience would not provide new information - "the government has the solutions on their desks, they just need to act".
"The international standard around the minimum age of criminal responsibility doesn’t care about jurisdiction - it cares about the rights of children."
The recommendation that has not been implemented
The 2020 report which recommended the MACR be upped to 14 nationwide, without exception, was not released for two years.
The 140-page report found medical and scientific evidence clearly established that children under 14 years were "unlikely to be capable of understanding the consequences of their actions and do not have the maturity required for criminal responsibility".
It also noted such a move would be an "important step towards addressing the over-representation of Indigenous children in the criminal justice system".
Health outcomes for children
The Royal Australasian College of Physicians (RACP) president Dr Jacqueline Small said it was "disappointing that the nation’s first law officers could not agree to put the well-being of very young children first".
"We urge other jurisdictions to show leadership and raise the age, even without a nationally agreed approach."
The college's open letter on the topic said not only did most children in the youth justice system have significant neurodevelopmental delays but children between 10 to 13 years old in juvenile detention also had higher rates of pre-existing trauma "which requires support, stability and care, not incarceration".
According to figures from the federal government's Australian Institute of Health and Welfare, in the June quarter of 2022, 44 young people aged 10 and 13 years of age were in youth detention on an average night.
The RACP described harm from incarcerating young children as "severe and long-lasting," and has said harms can be caused by the criminal justice system even when a child had not been incarcerated.
