It’s become increasingly clear that Australia could be in breach of its human rights commitments as reports of mistreatment continue to emerge from youth detention centers in Western Australia. On January 12, a class action involving more than 500 young children and adults who have been held in Western Australia’s Banksia Hill detention center was launched. Walters v. State of Western Australia details a girl with severe autism spending long periods in Bankia’s Hills “Cue Unit” for periods of up to 6 months, when she was approximately 13 years of age. An ABC Four Corners report also recently identified 46 complaints of excessive force from youth detention staff at Banskia Hill over the 12-month period, ending September 30, 2022.

The reports from Banskia Hill have reignited calls to raise the age of criminal responsibly from 10 to 14 years old, with the 29 out of 47 United Nations member states supporting this move. The UN Committee on the Rights of the Child indicated that 12 years should be the absolute minimum age for children to be criminally liable, with suggestions to raise the age to 14. The criminal age of responsibility is 10 years old in Australia, New Zealand, South Africa and the United Kingdom. While countries such as Germany, Vietnam, South Korea, Romania, Spain Poland and Denmark have all raised the age to 14 years old or above.

It’s an area of law that has gained much attention from children protection, human rights and indigenous rights groups. Currently in Australia, the Criminal Code Act 1995 (Cth) and Criminal Code 2002 (ACT) state that children over 10 but under 14 “can only be criminally responsible for an offence if the child knows that his or her conduct is wrong. The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.” This refers to the operation of doli incapax, or “incapable of guilt.”

Learning what is right and wrong by the age of 10 is fraught with social, cultural and psychological issues. As Dr. Time Bateman Reader in Youth Justice, Department of Applied Social Studies, University of Bedfordshire says:

Acquiring a moral understanding is not like learning to walk, a once-and-for-all achievement. It is rather a skill that improves incrementally over an extended period: just as we would not expect a toddler who has grasped the rudiments of arithmetic to solve quadratic equations, so too a primary school child who understands that damaging property is “wrong” is not manifesting an ethical stance that would properly qualify him or her for jury service.

According to Raise the Age, a coalition of Aboriginal and Torres Strait Islander organizations and legal, medical and human rights groups, the statistics of minors incarceration disproportionately affect indigenous children. They state that in one year in Australia close to 600 children aged between 0 and 13 years were incarcerated. Meanwhile, indigenous children account for 65% of these younger children in prisons. These statistics are supported by Law Council President Pauline Wright, who says the evidence strongly suggests that a low minimum age of 10 years old does not make our communities safer:

These are some of the most vulnerable children in society. Many have been abused or neglected during their short lives. Many have cognitive impairments and many come from disadvantaged backgrounds. Aboriginal and Torres Strait Islander children aged between 10 and 17 are 23 times more likely to be in detention than non-Indigenous young people.

Australian Human Rights Commission said the reports from Bankia Hill show that it’s clear “the current approach of tougher sentencing and bail laws, punitive conditions, building more children’s prisons for increasing numbers and incarcerating children as young as 10 years old is not working to keep the community safe.”

This comes as Australia’s Human Rights Commissioner appeared before the United Nations Committee Against Torture in Geneva in November, delivering analysis on how Australia measures up against our obligations under the UN’s Convention Against Torture (CAT). Commissioner Lorraine Finlay responded to a submission to the committee against torture, containing issues such as the rights of people detained in facilities, including juvenile and immigration detention facilities, prisons, and certain health, aged care and disability settings.

Pressure is mounting on Australia to align with the Convention on the Rights of the Children, with the Republic of Moldova representative urging that Australia “in particular raise the minimum age of criminal responsibility from 10 to 14 years of age.”

Plans to raise to age are scattered among Australian states, with small moments of momentum over the past 10 years resulting in little reliable action. Raise the Age says change in Australia needs to be top-down, with leadership from the Council of Attorneys-General. They refer to a now released 2020 “secret report” recommending raising the age of criminal responsibility to 14 without exceptions, which was supported by a majority of states and territories across Australia. The report was informed by over 90 public submissions made by Aboriginal and Torres Strait Islander organizations, medical and legal experts, and human rights organizations.

Monique Hurley, Human Rights Law Centre, says the report must be acted upon now: “Every day that our chief law officers refuse to act on this straightforward reform, they are condemning a generation of children to the harm inherent in being locked away behind bars. The evidence is crystal clear, and it’s been sitting on their desks for over two years. Governments across Australia must act now and raise the age to at least 14.”

Victoria Legal Aid comments on the slow progress, saying, “We note that Attorneys agreed in 2021 to work towards raising the age of criminal responsibility to 12. The evidence is clear from this report that all governments should be working towards raising the age to 14.”

The details of this 2020 Council of Attorneys-General only confirm what children protection, human rights and indigenous rights groups have been campaigning for for over a decade: a unified approach to raising the age of criminal responsibly to 14, ultimately keeping children out of the criminal justice system, and its brutality, as shown in reports from Banksia Hill.

Brooke Forbes is a final year Juris Doctor candidate at Newcastle Law School.

Suggested citation: Brooke Forbes, Australia Human Rights Breaches Under Scrutiny as Politicians Struggle to Raise the Age of Criminal Responsibility, JURIST – Student Commentary, January 20, 2023, https://www.jurist.org/commentary/2023/01/brooke-forbes-australia-criminal-responsiblity-age/.

This article was prepared for publication by Hayley Behal, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org