By Callum O’Donnell
When you were 10, you could not have been thought of as responsible or mature enough to vote in Australia’s elections. You were far too young to consider how the decisions you were making would influence the rest of your life. So why is it that children as young as ten are bearing the full brunt of Australia’s punitive legal system?
In Australia, children can be placed in youth detention from ten years of age, a decision that experts agree results in high rates of recidivism. The harsh reality is: if your first brush with punitive incarceration occurs from such a young age, you’re likely to be spending the rest of your life at odds with the legal system. Are we stopping crime in Australia by incarcerating children who have not yet hit their teens? Or are we simply perpetuating a system that breeds repeat offences instead of rehabilitation?
Is there any excuse to lock up a child? A combination of Australian lawyers, doctors and activists say no.
The push to raise Australia’s age of criminal responsibility is nothing new. Many will remember the 2016 Royal Commission into the Northern Territory’s juvenile detention system that threw Australia’s uniquely low age of imprisonment into the spotlight. It was the filmed abuses against child offenders within the walls of Darwin’s Don Dale Juvenile Detention Centre that moved the then PM Malcolm Turnbull to call for the Royal Commission. The fall-out from the footage which the then NT Chief-Minister Adam Giles described as ‘shocking’ and ‘disgusting’ sparked a nation-wide dialogue, with many wondering how children as young as 10 found themselves behind bars in the first place.
Today, the momentum from the United States’ Black Lives Matter movement has yet again turned Australia’s public eye towards our incarcerated minors, with 10 still being the age of criminal responsibility nation-wide. The Council of Attorneys-General met and discussed the issue that had been under fire for almost half a decade, but NSW Attorney-General Mark Speakman made it known that it would be “unlikely” for any reforms to be made until 2021. Speakman cited the lack of an “alternative regime” as the reason why Australia cannot increase the age. He labelled the move to take incarceration off the table as a means of punishment for minors aged 10 as “ambitious”.
It is important to note that Australia would not be leading the way forward for children’s rights by enacting such a change but would instead be keeping pace with the rest of the developed world whose median age of juvenile imprisonment is 14.
There is substantial national pressure to raise the age, with National Children’s Commissioner Megan Mitchell stating that “placing children in any kind of detention takes away their childhood and disrupts their healthy development. It also increases the likelihood of them re-offending.” Other national organisations that range from legal organisations to medical associations have also kept pressure on the Australian government to change the age on the basis that children of 10 facing potential jail time is not only unjust, but medically unethical. Shahleena Musk from the Australian Human Rights Law Centre, said that “Prisons are hard cold places that do nothing to help children turn their lives around,” and that “ten year old kids belong in schools and playgrounds, not in prisons, but Australia’s archaic laws are ripping children from their families, community and culture and throwing them into concrete cells.”
The vast majority of children ending up behind bars in this country are sent there for theft, public disturbances, and illicit drug offences. Most of these children also come from severely disadvantaged communities and families already suffering from poverty, mental illness, and addiction. The statistics from the Australian Institute of Health and Welfare also show that 94% of children aged 10-14 reoffend and are subsequently resentenced within 12 months of leaving juvenile detention.
In light of these numbers, the current criminal justice system is punishing disadvantaged children for crimes that are more often than not results of their circumstance rather than inherently malicious. The statistics also demonstrate that the current system is not preventing the children who are jailed early from committing more crimes in the future. Given the rates of recidivism amongst youths, a lifestyle defined by crime is produced by locking up children through key developmental years, not prevented. Both Shahleena Musk and Cheryl Axleby have described putting children behind bars as a form of ‘legal quicksand’, meaning that once these children enter the system, they will likely spend the rest of their lives on the wrong end of it.
Locking up kids locks them out of a chance at rehabilitation and re-integration into society. Coming down hard on ten-year-olds with punitive incarceration increases their likelihood of offending again. William Tilmouth, co-founder of the NGO ‘Children’s Ground’ described our jail system as “draconian”, saying it acts as a “conveyer belt”, moving kids into a cycle of crime and punishment.
The disproportionate effect of the low criminal age in Australia towards children with disadvantaged backgrounds has resulted in the stark overrepresentation of Indigenous children behind bars. According to the Australian Institute of Health and Welfare, on any given night over half of all young people behind bars are Indigenous. In the Northern Territory, 96% of imprisoned children are Indigenous.
Given that youth imprisonment is an issue that affects Indigenous children so disproportionately, there has been confusion over why policies and initiatives with proven rates of success in reducing child crime amongst Indigenous children have not been implemented nationally.
Circle sentencing, a judicial process that incorporates Indigenous elders and stages the court processes in a more culturally sensitive location, has been greatly successful in reducing recidivism in Aboriginal populations in New South Wales. The alternative sentencing procedure allows community members and elders to have a direct say in the offenders’ penalty. Detention is the last resort and a greater degree of concern is placed on community shame and creating long lasting change within the offender.
Circle sentencing is an option for Indigenous offenders who plead guilty early on to an approved list of offences that excludes rape, assault with grievous bodily harm, and offences involving a firearm. This alternative sentencing measure is available in 12 courts across NSW, and has been shown to reduce incarceration by 51.7%, and make offenders over 9 times less likely to reoffend. Western Australia also saw a 53% drop in serious juvenile crime in 2013 when implementing multi-systemic therapy (MST) for at risk youths. This kind of therapy is introduced on a community and family level and teaches parents/caregivers how to better address their child’s antisocial behaviour while getting to the root of the child’s behavioural issues. However, circle sentencing has not been implemented Australia wide and is rarely offered to children, despite its successes.
Australia needs to seriously ask itself: Are we genuinely invested in making sure criminals don’t exit incarceration just to re-offend? Or are we satisfied with punishing people within a system that’s been proven time and time again to reproduce a vicious cycle of recidivism? The justice system needs to be geared towards rehabilitation, a goal we all but nip in the bud by introducing children to incarceration at the age of 10. If we lock them up, we are locking them out of a promising future.
 “Rethinking Youth Justice: There Are Alternatives To Juvenile Detention”. 2020. The Conversation. https://theconversation.com/rethinking-youth-justice-there-are-alternatives-to-juvenile-detention-63329.
 “‘I Cried In My Cell, I Was Just A Boy’: The Push To Raise The Minimum Age Of Criminal Responsibility”. 2020. Abc.Net.Au. https://www.abc.net.au/news/2020-07-27/raise-the-age-of-child-criminal-responsibility-in-australia/12483178.
 “Government Failing Children By Refusing To Raise Criminal Age Of Responsibility, Say Activists And Experts”. 2020. SBS News. https://www.sbs.com.au/news/government-failing-children-by-refusing-to-raise-criminal-age-of-responsibility-say-activists-and-experts.
 Ella Archibald-Binge, Nigel Gladstone. 2020. “‘A Quicksand That Traps These Kids’: Push To Raise Age Of Criminal Responsibility From 10 To 14”. The Sydney Morning Herald. https://www.smh.com.au/national/a-quicksand-that-traps-these-kids-push-to-raise-age-of-criminal-responsibility-from-10-to-14-20200715-p55cek.html.
 “Youth Detention Population In Australia 2019, Summary – Australian Institute Of Health And Welfare”. 2020. Australian Institute Of Health And Welfare. https://www.aihw.gov.au/reports/youth-justice/youth-detention-population-in-australia-2019/contents/summary.
 Jens Korff, Creative Spirits. 2020. “Circle Sentencing”. Creative Spirits. https://www.creativespirits.info/aboriginalculture/law/circle-sentencing.