Opinion piece in The West Australian - It’s Time to Raise the Age

by Jacqueline McGowan-Jones

In the lead up to the government’s decision to include Year 7 students in high school cohorts from 2015, the Western Australian community expressed concerns about the appropriateness of children at such a young age attending high school, yet under current Western Australian law Year 5 students can be held criminally responsible and incarcerate them.

As Commissioner for Children and Young People I am required by law to regard the best interests of children and young people as my paramount consideration. It is categorically not in the best interests of children and young people for the WA government to continue to support 10 years as the minimum age of criminal responsibility.

By international standards Australia has a low age of criminal responsibility. Most nations have set their age of criminal responsibility between 12 and 16 years with the common minimum age of criminal responsibility being 14 years.

The United Nations Committee on the Rights of the Child has repeatedly called on governments across the world to increase their minimum age of criminal responsibility to at least 14 years.

In 2019 the Committee specifically recommended that the minimum age of criminal responsibility in Australia be raised to an “internationally acceptable level”, and that it conforms with the upper age of 14 years.

There are many compelling reasons for increasing the minimum age of criminal responsibility.

A vast majority of children in the youth justice system have experienced adverse childhood experiences and suffer mental health issues and cognitive impairment. Many have high rates of pre-existing trauma and are physically and neuro-developmentally vulnerable.

The Australian Medical Association and Law Council of Australia jointly reported in 2019 that the younger a child is when they first come into contact with the criminal justice system, the more likely they will become entrenched in it, and that early contact with the criminal justice system is one of the key predictors in juvenile and adult offending.

Without diversion from repeated contact with the criminal justice system children and young people often face consequences far worse than their original act.

There is clear evidence that children under 14 years lack impulse control and have a poorly developed capacity to plan and foresee consequences.

If we want to achieve better outcomes for our vulnerable children and young people, and for our community, we must recognise that addressing challenging behaviours is best achieved through evidenced-based holistic and comprehensive social policies and trauma informed programs rather than a punitive corrections-based response. 

The minimum age of criminal responsibility is the age at which we legally condone the exposure of our children and young people to the criminal justice system and accept the introduction of lifelong social, psychological and financial consequences into their lives.

In all other aspects of life we have agreed as society to protect, assist and guide young children and adolescents into adulthood. This is because we recognise children and young people generally do not have the knowledge and developmental capacity to make life-changing decisions on their own. 

The criminalisation of young people reduces their likelihood of completing education, obtaining qualifications and gaining meaningful employment, all of which increase the probability of them experiencing poverty and homelessness in adulthood.

It is also important to remember that many young people, for reasons beyond their control such as intellectual, cognitive or psychosocial disability, will not achieve development milestones within these typical timeframes (if at all). Such young people are already disproportionately affected by our current criminal laws.

Research shows that for most young people, antisocial behaviours are short term, transient, attention seeking and opportunistic.

Adolescence is a time of significant physical, cognitive, social and emotional development for children and young people.

If young people do not receive nurturing interaction their behaviours can become more serious over time and may develop into criminal behaviours in adulthood.

Supports designed to address the underlying cause of antisocial behaviour must therefore be provided alongside the provision of programs that directly address the needs of individual young people and their specific behaviours when they occur.

In addressing these more serious behaviours, we must work together to ensure policy makers and service providers have access to contemporary best-practice evidence, the resources required to design and implement effective responses, and the flexibility to adapt solutions to the particular circumstances of individual children and young people and their families.

Effective responses must balance the need to hold a young person accountable for their actions against the need to acknowledge and respond to any trauma and vulnerabilities they have experienced.

Increasing the age of criminal responsibility in Western Australia to 14 years requires a comprehensive, whole-of-government response that addresses the underlying needs of children and young people and supports them to stay out of the justice system. I recognise that this may require a period of iterative implementation, during which initially raising the age of criminal responsibility to 12 years may be appropriate. It is vital, however, that this is an interim step and that it comes with a legislative commitment to further raising the age of criminal responsibility to 14 years in the near future.

It is time for Western Australia to raise the age of criminal responsibly to an appropriate age that is reflective of international standards and social growth.

Published in The West Australian on 20 September 2022 on page 42 under the headline 'Prison is no place for kids'.