5 / 12 / 2022

Raising the Age of Criminal Responsibility in the ACT

In Late-September 2022, ACT Attorney General Shane Rattenbury announced that the ACT would become the first jurisdiction in Australia to raise the age of criminal responsibility from the current age of 10. The proposed bill would raise the age to 12 in the following months, with an additional increase to 14 in two-years’ time. This reform is consistent with United Nations standards and would establish a ground-breaking precedent for Australia’s other States and Territories. No official date has been confirmed. However, Rattenbury suggested that the reform would be implemented either by the end of 2022 or the first quarter of 2023. 

The reforms have overwhelming community support, with around 90% of the 52 community submissions supporting raising the age to 14 and a 5,000-signature petition being given to the ACT Legislative Assembly. However, whilst supporting an increase to 12, ACT Policing are reluctant to support any further increases. Particularly, they allege that a cohort of 13 to 14-year-olds can often engage in “serious and violent offending” and that they would be emboldened by insufficient repercussions. This perspective is shared by other Australian states, who in a November 2021 Meeting of Attorneys-General unanimously agreed to increase the age of criminal responsibility from 10 to 12, but crucially not 14. Nevertheless, both the Australian Law Council and Australian Medical Association agree that it is important to increase the age of criminal responsibility to at least 14 nationwide. 

The news reform is underpinned by a plethora of Neurological studies affirming that young people’s brains are still developing and that it is not just to hold such children criminally responsible. Research by psychologist Dr Meg Perkins argues that Children between the ages of 10 and 14 are scientifically incapable of sufficiently regulating their behaviour. Consequently, their frontal lobes, responsible for the brain’s executive functions, such as regulating emotions and behaviour is insufficiently developed. This reflects contemporary neurological consensus, with a 2018 British Medical Journal study finding that 89% of youth inmates in Western Australia’s Banksia Hill Detention Centre had at least one severe neurodevelopmental deficit.

Rattenbury subsequently cites the damaging effects of punitive sanctions on young offenders, with a causal correlation between interactions with the Criminal Justice System as a child and later-life recidivism. Instead, he argues that the ACT must adopt a more rehabilitative model, that reduces future recidivism and addresses the issues at the core of young offending. Accordingly, ACT Minister for Families and Community Services Rachel Stephen-Smith commented, “While young people need to be accountable for the impact of their actions on others, it is better for everyone if they are supported to address their challenges and diverted from later engagement in the justice system.” Finally, The ACT Minister responsible for Youth Justice, Emma Davidson reiterates that the bills’ primary purpose is rehabilitative, ensuring that at risk adolescents receive the assistance they require.

Mr Rattenbury has stated the new provisions are not a “get out of gaol free card”. Instead, prominent child welfare researcher Emeritus Professor Morag McArthur’s report submitted to the ACT Government has outlined the proposed accountability mechanisms that would be included in the bill for young offenders. These include restorative conferencing, fact-finding investigations, or circle sentencing, as well as improved mental health services and intensive education. This coincides with Mr Rattenbury’s claim that new provisions must endeavour to “address issues of alcohol and other drugs and mental health”. This also echoes Dr Emma Campbell’s assertion that “Kids belong in school and with their families and communities, not in prison cells. There is not a single shred of credible research that says putting children in jail helps them develop as useful members of society, or that it reduces crime.”

Critics of the reform have speculated that criminal organisations may attempt to recruit young people with the express intent of manipulating them into committing crimes with the knowledge that they cannot be held criminally responsible. However, existing laws are in place that make it illegal to recruit other people to engage in criminal activities, especially children, with a maximum penalty of 10 years imprisonment. Consequently, the government will monitor the new provisions, ascertaining whether new legislation is required to protect young people from adults who may try to exploit children under the new laws. Mr Rattenbury has rejected the idea of adding exemptions for certain violent offences, such as Murder. Instead, he suggests that all young people should be afforded access to the prospect of rehabilitation and that sustained detention is likely to exacerbate existing underlying issues such as trauma or Fetal Alcohol Syndrome.

The proposed legislation represents the modernisation of the ACT’s young offenders regime and mechanisms designed to protect the most vulnerable members of society. It recognises the scientific reality that children below the age of 14 are simply incapable of forming the sufficient criminal intent to be held responsible for their actions. This coincides with the stance of the United Nations regarding the Human Rights obligations of nations pertaining to children. Simultaneously, it aligns the ACT’s stance with a majority of nations globally.

Sam Hines