Following Universal Children’s Day, doctors, lawyers, health and human rights experts from across Australia are calling for the age when children can be held criminally liable to be raised to at least 14 years so that primary school aged children are not entangled in the criminal justice system.

All Australian states and territories currently have laws that allow children as young as ten years to be charged, brought before the courts, sentenced and imprisoned.

The United Nations has repeatedly rebuked Australia for maintaining such a low age of criminal responsibility.

Dr Mick Creati, International Child and Adolescent Health Specialist and Senior Fellow with the Royal Australasian College of Physicians, said that the medical evidence is clear – developmentally, children are very different to adults.

“Children of this age have relatively immature brain development when it comes to decision-making, organisation, impulse control and planning for their future. We shouldn’t criminalise actions that may be developmentally normal for children of this age and they should not be incarcerated as a consequence,” said Dr Creati.

Last Friday, the Royal Commission into the Protection and Detention of Children in the Northern Territory provided a number of recommendations for fixing broken youth justice systems. As part of this, the Royal Commission made the landmark recommendation to raise the age of criminal responsibility.

“The Royal Commission has recommended raising the minimum age of criminal responsibility and this is a recommendation we fully support from a health perspective,” said Dr Creati. 

Each year across Australia, around 600 children under the age of 14 are locked away in prison cells and put in danger. Close to 70 per cent of these children are Aboriginal and Torres Strait Islander.

Wayne Muir, Co-Chair of the National Aboriginal and Torres Strait Islander Legal Services, said that youth justice systems are failing all of us and must be overhauled and replaced with a system that is therapeutically and culturally responsive.

“Children are being labelled criminals when all of our efforts should be focussed on keeping children safe and supported within their communities. Removing children as young as ten from their families and forcing them into the criminal justice system takes away their basic rights as children to learn, grow and thrive,” said Mr Muir. 

Ruth Barson, Director of Legal Advocacy at the Human Rights Law Centre, said that evidence shows that children who get drawn into the criminal justice system are much more likely to get trapped and face a future behind bars.

“Now is the time for all states and territories to take action and raise the age of criminal responsibility. The Royal Commission has unequivocally told Australia that primary school aged children should be supported in the community, not syphoned into prisons. Our governments must seize this historic opportunity to modernise our youth justice systems, or risk another Don Dale,” said Ms Barson.

Mr Romlie Mokak, CEO of the Lowitja Institute, said that it’s critical our governments commit to reducing the number of young people in the justice system.

“To maximise children’s chances to lead healthy, fulfilling lives, governments must focus on early intervention and diversion services. In doing this, it is critical to prioritise engagement with Aboriginal and Torres Strait Islander Peoples, organisations and researchers, particularly in early design of programs and later monitoring of outcomes,” said Mr Mokak.

Dr Kali Hayward, President of the Australian Indigenous Doctors’ Association said that the health and safety of children, families and communities must be prioritised over the current traumatising approach to remove children. "The continued practice of removing children from their families and communities
creates new intergenerational trauma and continues the cycle of social disadvantage, with subsequent significant negative health impacts. These policies represent the antithesis of a fair and caring society," said Dr Hayward.

Amy Lamoin, Director of Policy and Advocacy at UNICEF Australia, said that international standards require us to set a minimum age of criminal responsibility that takes into consideration the emotional, mental, and intellectual maturity of children.

“The most common minimum age of criminal responsibility adopted by nations is 14 years of age. At this critical juncture, we encourage Australian governments to catch up with the rest of the world and raise the gateway age for when children can be drawn into the criminal justice system” said Ms Lamoin.

The RACP’s position paper, The Health and Wellbeing of Incarcerated Adolescents, highlights that incarcerated adolescents are more likely to experience poorer health and life outcomes and disproportionately high levels of disadvantage over that of the general population. It is increasingly recognised that their health needs are greater than adolescents in non-custodial settings.