Should The Australian Age of Criminal Responsibility Be Raised

The minimum age of criminal responsibility in Australia is set at the age of 10 years, being one of the lowest MACR in the world, spanning across all jurisdictions including Queensland, NSW, and South Australia. This means the minimum age of criminal responsibility (MACR) is the age at which a 10 year old is considered criminally responsible of having defied a criminal offence in a specific jurisdiction spith intent, recklessness, or negligence based on act or omission. But the MACR in Australia is becoming increasingly evident within political and public circles, as the current age of criminal responsibility is unacceptably low. In this report I will explore the current circumstances that follow the MACR bill in raising the minimum age of criminal responsibility and issues regarding interational comparisons, children's protection rights, the limited ability of the common law doctrine of dole incapacity to protect young children, child developmental troubles and issues of mental illness and cognitive impairment, criminological dilemmas relating to the failure of a criminalisation approach, the views of stakeholders, and the fact that the MACR bill has exposed youth to the criminal justice system, leaving a significant impact on their neurological and social development, which have been proven to result in life-long interactions with the justice system, proving that the MACR in Australia should be elevated to 14 years old.

Nature and Scope of the Age of Responsibility

It is estimated that 5,513 young people aged 10 and over were governed on an average day by youth justice in 2017-18, and 10,638 aged 10-17 were on supervision temporarily during the year. This equates to 21 per 10,000 or 1 of every 486 young people on a daily basis, but why? Children involved in the criminal justice system often come from disadvantaged backgrounds and have complex needs based on research for the Comparative Youth Penalty Project, which shows that young people in juvenile justice have multiple and complex needs, including coming from communities of entrenched socio-economic disadvantage and being exposed to fragmented educational experiences marked by periods of exclusion and expulsion, which result in poor educational outcomes. Research shows, children who offend are subjected to precarious living arrangements including homelessness andor placements in Out of Home Care (OOHC), and have experienced child abuse, neglect, disability, mental illness, drug and alcohol abuse, exposure to crime and violence and unresolved trauma of which the current MACR bill does not address as of legal, medical, social standards, evidence and research, which coalesce into a strong consensus that children of this age should not be criminalised, further victimising underprivileged children. Data shows in 2009 New South Wales an inmate health survey identified approximately half of participants did not finish year 10, one in 10 (11%) were living in unsettled accomodation or had no fixed abode prior to their current incarceration, and approximately 30% noted they had accomodation problems in the six months prior to incarceration, 50% of men and 67% of women were unemployed in the six months prior to their imprisonment, with 30% men and 44% women being unemployed for five years or longer, 22% of non-Aboriginal male prisoners and 27% of non-Aboriginal female prisoners, and 46% of Aboriginal male prisoners and 45% of Aboriginal female prisoners, had been placed in out of home care as a child, and approximately one in five prisoners (18% of men and 17% of women) have had a parent in jail. This strongly suggests that there is a strong correlation between child and youth offending and entrenched disadvantage.

There appears to be a span of cognitive impairments customary to youth in the juvenile justice system, including speech, language, communication disorders, Attention Deficit Hyperactivity Disorder (ADHD), autism spectrum disorders, Fetal Alcohol Spectrum Disorder (FASD), and acquiredtraumatic brain injuries. 69 Research studies, suggested that many First Nations children in detention have hearing and language impairments that are not diagnosed and their behaviour is misinterpreted as non-compliance, rudeness, defiance or indifference. The link between cognitive disability and associated impairments and vulnerability to the juvenile criminal justice system was highlighted in a prevalence study with respect to children at Banksia Hill Detention Centre in Western Australia, conducted by the Telethon Kids Institute. There were unprecedented levels of severe neumdevelopmental impairment among sentenced youth, according to the study. There was also evidence that 89 percent of children suffered at least one form of severe neurodevelopmental impairment, as well as 67 percent who suffered three forms and 23 percent who suffered five or more. FASD accounted for 36 percent of cases, and cerebral disability accounted for 25 percent. Of 99 child detainees in Western Australia, Bower, Watkins & Mutch, (2018) found that 89 percent had at least one severe neurodevelopmental impairment. The impairments included fetal alcohol spectrum disorder (FASD), intellectual disability, attention deficit disorder (ADD), anxiety, speech and language disorder (SLD), trauma and attachment disorder (TAD), and developmental delay. In Western Australia, the Commissioner for Children and Young People commended cognitive disability and associated impairments as driving factors of children's involvement with the juvenile criminal justice apparatus.

Overview of Stakeholder Viewpoints

As a national law representative body, the Law Council of Australia represents the interests of the legal profession, provides advice to its constituent bodies on national issues, and works to improve access to justice, the administration of justice, and the general quality of the law. Moreover, they acknowledge that poor health has been associated with contact with the criminal justice system, and therefore they find the current Australian MACR damaging and unacceptable. In accordance with the Australian Law Council's recommendation, the minimum age of criminal responsibility should be raised to at least 14 years old. Innumerable factors are appraised by the Law Council in reaching this cessation, including community safety, criminogenic effects, developmental considerations, the disproportionate impact of the current age of criminal responsibility on vulnerable populations, international human rights standards, the limits of doli, incapax, alternative ways to address criminal justice, and the need for supplementary misdemeanours. As well, it fails to take into account the socioeconomic determinants that lead to certain cohorts, such as First Nations children, children in out-of-home care, and children with significant health problems, to be disproportionately represented in the criminal justice system. As a result of this evidence, the Law Council believes the best interests of the child and the public align more closely than is generally recognized.

The United Nations is an intergovernmental organisation whose mission is to promote international peace and stability, foster cordial relations among nations, attain international cooperation, and serve as a conduit for barmonizing nations' actions. There are 193 UN member states, 122 proposed 250 recommendations, and 31 imploring Australia to raise the MACR during a UN Human Rights Council universal periodic review procedure in January. The United Nations incentivises Australia to elevate the MACR in order to develop and implement a comprehensive juvenile justice policy that prohibits and accommodate juvenile delinquency quench, premised on guidance and assistance from the Interagency Panel on Juvenile Justice, which convenes representatives of the Office of the United Nations High Commissioner for Human Rights (OHCHR), the United Nations Children's Fund (UNICEF), and the United Nations Development Programme (UNDP), Nations Office on Drugs and Crime (UNODC) and nongovernmental organizations (NGO's) and to provide special attention to juvenile delinquency mitigation, the integration of alternative measures allowing responses to juvenile delinquency without capitulating to judicial procedures, and the interpretation and implementation of all other provisions, and to promote the amalgamation, in a national and comprehensive juvenile justice policy, of other international standards, particularly the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, into a national and comprehensive juvenile justice policy.

Sharing Legal Alternatives

There is a better prospect of correcting increasingly violent conduct behaviour with early intervention and rehabilitation in relation to adolescents than in adult offenders regarding repercussions; for example, The Australian Childhood Foundation (ACF) could pursue a legal alternative regarding sanctions provided to children for criminal offenses. ACF is a highly reputed facilitator that provides statewide therapeutic interventions serving children and youth in the juvenile justice system who have cognitive impairment, mental illness, or trauma. Outside of the youth justice system, comprehensive therapeutic and supportive methodology to individuals and caregivers urgently intended to assist people through providing protection rather than further damage for those in need. Several modules are currently viable in Victoria, Tasmania, South Australia, the Australian Capital Territory, the Northern Territory, and Western Australia.. It has established the Centre for Excellence in Therapeutic Care, a statewide intermediary to aid in the reform of Residential Care. This form of consequence helps prevent further criminal acts and better understanding of what is right and wrong towards children

A second legal alternative is to raise the MACR to the appropriate age of 14. Various arguments for raising the MACR from the age of 10 have been made based on three arguments: its inherent irrationality, its unfairness in practice, and its outdated notion that a child under 14 can discern right from wrong, which leads to the harshness of criminal punishment. It appears that diversion from custody and the youth justice system will be a better fit for the majority of children and young people, thus enhancing community safety. If the criminal age is raised, court consideration of doli incapax arguments will be eliminated. In addition, the legislation will bring Australia's legislation into line with its international human rights obligations and medical consensus regarding child brain development, leading to a reduction of reoffending rates and improved prospects for young people between 10 and 13 years of age while ensuring detention is a last resort for anyone under 18.

Recommendation

Australia's MACR is significantly out of step with other developed countries' MACR. For example, the MACR is 12 years in Belgium, Canada, Israel, Netherlands, Scotland, 13 years in Greece, 14 years in France, Austria, Germany, Italy, Japan, Spain, Iceland, Russia, Norway, 15 years in Denmark, Finland, Iceland, Norway, Sweden, 16 years in Portugal, Japan, and 18 years in Brazil, Luxembourg, Peru, Uruguay. By bringing the MACR to 14 years, a more equitable, consistent, and effective approach is established than if we applied Dole incapax. When using this framework, you can incorporate human rights, child rights, culturally-appropriate practice, and trauma-informed perspectives when working with young people who may be involved with the youth justice system, so that, in the future, youth crime rates will lower as children under 14 will be better prepared for a better future and a better society.

Conclusion

Finally, it is recommended that the MACR be raised to 14 due to the numerous evidence and competing arguments supporting this proposal. These primarily based on child brain development research that shows that 10-year-olds have not developed the requisite level of maturity to form the necessary intent for full criminal responsibility, studies that show that the younger the child is when encountering the justice system, the more likely they are to re-offend, raising the Australian MACR would bring Australia into line with its obligations under the Convention on the Rights of the Child, many children involved in the criminal justice system come from disadvantaged backgrounds and have complex needs better addressed outside the criminal justice system, stakeholder viewpoints and legal alternatives for addressing the issue.