UN tells Australia (again) to not criminalise children

10 November 2017

Australia’s human rights performance has been reviewed by the United Nations. The UN Human Rights Committee handed down its findings in Geneva overnight. Australia has yet to meet the human rights standard age at which we hold children criminally responsible for their actions.

Currently, the minimum age of criminal responsibility is 10 years old in every Australian state and territory.

In human rights terms, it should be raised to at least 12 years of age, and many experts think it should be 14 years.

Others believe “the way forward is to separate the concept of responsibility from that of criminalisation” and stop criminalising children altogether. They argue for “systems that keep children out of the criminal justice system, systems which renounce retribution and focus exclusively on children’s rehabilitation, always with necessary attention to public safety and security.”

While all children behave badly at times – and sometimes do serious harm – because of their age and immaturity, children are not fully responsible for their actions in the same way as an adult, and should not be criminalised for misconduct.

The question at issue here is: at what age a legal system should regard a person as responsible for actions that break the law? The UN’s highest authorities on the interpretation of the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child are clear: Australia’s minimum age is too low and must be raised to at least 12 years in all jurisdictions.

Childhood is when we are most open to learning and to remedial intervention. Prison is the least helpful response we can make to children who have problematic behaviour. No-one benefits from putting vulnerable children at risk of added harm and trauma.

The good news is children have huge potential for healing and rehabilitation, with the right interventions.


Prison should be a last resort, not a default option

Another significant problem in Australia’s youth detention system is that a very high proportion of the children there are on remand – as high as 90%. That is, we are imprisoning children who have not been convicted or sentenced, but who are awaiting trial.

“Young people in there unsentenced, not knowing what their future is, in itself creates a very volatile environment. Often they are not able to access programs that sentenced children and young people are getting, so they are really just hanging out. It’s not a healthy environment.”

-- Julie Edwards, CEO of Jesuit Social Services

If we did not treat them as criminally responsible – but rather took a welfare approach to diagnosing and responding to the causes of their behaviour – children on remand would not be in prison at all.


Alternatives that work

Across the political spectrum and across the world, people are realising “incarceration doesn't work. It’s expensive, we don’t get the outcomes we want, and it doesn’t make for a safer community,” notes Cath Neville of Jesuit Social Services, who has studied the evidence behind the Missouri Model and approaches to youth justice in Europe.

Norway’s age of criminal responsibility is 15. They have one of the lowest incarceration rates in the world, and the lowest recidivism rate in the world at 20%.

That is, 4 out of 5 of their young people who get in trouble with the law never offend again.

That’s what we want for our children and our communities. It cannot be achieved with a ‘tough on crime’ response that criminalises children without regard for their rights or welfare or the care and services they need to address the causes of their offending.

“In Norway, correctional staff must have 2 years training where they learn how to keep the place secure and keep people safe, but they also study human rights and ethics and culture and child development …”

-- Julie Edwards, CEO of Jesuit Social Services

Back in Australia, things could not be more urgent, given in the Northern Territory our children and young people are incarcerated at the highest rate anywhere in the world. We await the findings of the Northern Territory Royal Commission into the Protection and Detention of Children, due next week.

All Australian governments should seize this moment to raise the age of criminal responsibility to at least 12, significantly reduce in the number of children in our prisons and build an evidence-based, therapeutic response to children and young people at risk.