Exerpt of Communique – Meeting of Attorneys General, 15 November 2021

Other business

Participants agreed that raising the minimum age of criminal responsibility and online vilification will be considered informally under ‘other business’.

Participants discussed implementation of the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and agreed that officials would continue to discuss the intergovernmental agreement and funding.

Participants noted the concerns raised by the Australian Capital Territory, Northern Territory and Queensland about the effect of Commonwealth laws on states and territories’ abilities to legislate on voluntary assisted dying. The Australian Capital Territory and Northern Territory paper notes the legislative barriers for those jurisdictions in legislating for voluntary assisted dying in their jurisdictions.

State Attorneys-General supported development of a proposal to increase the minimum age of criminal responsibility from 10 to 12, including with regard to any carve outs, timing and discussion of implementation requirements. The Northern Territory has committed to raising the age to 12, and will continue to work on reforms including adequate and effective diversion programs and services. The Australian Capital Territory has also committed to raising the age, and is working on its own reforms.

Media release – Elise Archer, Attorney-General, Minister for Justice, 15 November 2021

States agree to develop nationally consistent approach to raising the age of criminal responsibility

At the Meeting of Attorneys-General on Friday, 12 November all State Attorneys-General agreed to support the development of a proposal to increase the minimum age of criminal responsibility (MACR) from 10 years to 12 years. This will include consideration of carve outs, timing, as well as discussion of implementation supports.

As Tasmania’s Attorney General and Minister for Justice, I have consistently expressed the view that a nationally consistent position on any reform to the age of criminal responsibility is required.

I note that the age of criminal responsibility is a separate issue to the age of detention, which will be considered separately as part of our new approach to Custodial Youth Justice in Tasmania. In Tasmania detention is a sentencing option of last resort and it is extremely rare for a young person under the age of 14 to be sentenced to detention in Tasmania.

No children aged between 10-12 years in Tasmania have received a sentence of detention in the last 5 years, and only 2 young people aged 13 have received a sentence of detention.

There are complex legal issues to consider in raising the age of criminal responsibility, and so I am incredibly pleased to have worked with all states to take this important step to develop a proposal as part of the Meeting of Attorneys-General.

The Tasmanian Government is already focused on delivering a new approach to youth justice in Tasmania which will include closing the Ashley Youth Detention Centre and establishing two smaller facilities, one in the North and one in the South. Our new approach is not just about custodial youth justice, but will include reform of the whole youth justice system.

This is why it is pleasing that all states have agreed to also ensure that the complex legal issues are considered as part of our commitment to develop a proposal to raise the age of criminal responsibility. This includes consideration of:

  • whether there should be exceptions or carve outs for extremely serious offences such as, for example, murder;
  • the timings of implementation; and
  • questions around the development, and ensuring increased participation in supporting programs and services as part of our broader youth justice support service.

Developing this proposal is an important step to addressing these issues and protecting our children and young people, and I am incredibly pleased states have been able to come to a consistent approach in developing this proposal.

Further information regarding the decision from the Meeting of Attorneys-General is available in the Communique, which is available from 5pm today: www.ag.gov.au/about-us/who-we-are/committees-and-councils/meeting-attorneys-general.

Media release – Dr Rosalie Woodruff MP | Greens Justice spokesperson, 16 November 2021

Archer Must Rethink Age of Criminal Responsibility

Raising the age of criminal responsibility is designed to prevent children, who have not developed adult decision-making capabilities, from entering the justice system. The Attorney-General’s decision to only raise the age to 12, instead of 14, is indefensible.

Children lack the necessary components of criminal responsibility. Between 12 and 14, that’s still the case.

Contemporary evidence shows children under the age of 14 have immature brain development in terms of decision-making, impulse control and moral awareness. This is recognised by the United Nations Child Rights Committee and the Royal Australasian College of Physicians.

Children under the age of 14 who commit crimes would be doing so because of unaddressed trauma. Putting a traumatised child through the various stages of the criminal justice system is likely to exacerbate trauma and increase the chance of them reoffending.

Tasmanian experts have been clear about the need to raise the age of criminal responsibly to 14, including the Commissioner for Children and Young People. The Commissioner has put the Liberals on notice, calling on them to, ‘stop criminalising disadvantage and vulnerability.’

The Attorney-General’s comments about needing a nationally consistent approach are nonsense, and expose calculated political expediency.

As Ms Archer herself often says, states and territories are entitled to make their own laws. On this matter, the ACT has listened to the experts and will raise the age of criminal responsibility to 14 – led by Greens Attorney-General, Shane Rattenbury.

Apparently Ms Archer won’t take note of international standards set by the United Nations, or listen to the dozens of notable Tasmanians who signed an open letter calling for the age of criminal responsibility to be raised to 14.

Those people include former Chief Magistrate Michael Hill, Children’s Commissioner Leanne McLean, Australian of the Year Grace Tame, former Anti-Discrimination Commissioner Robin Banks, and representatives from Amnesty International, Women’s Legal Service, Youth Network of Tasmania, TasCOSS, Anglicare and the Mental Health Council of Tasmania.

Children under the age of 14 who break laws need social welfare interventions that address the cause of the behaviour, instead of child penal colony-thinking. Tasmania has moved on from this dark past and it’s time Ms Archer did the same.

Media release – Australian Human Rights Commission, 16 November, 2021

Proposal to raise the age does not go far enough

All 16 of Australia’s children’s commissioners, guardians and advocates say a commitment by state attorneys-general to develop a proposal to raise the age of criminal responsibility to 12 does not go far enough.

In a joint statement, Australian children’s commissioners, guardians and advocates said: “We are pleased that some jurisdictions have for the first time indicated they will look at raising the age, but this process is not going far enough or fast enough.

“The minimum age of criminal responsibility in all Australian states and territories should be 14 years. That is what the UN Committee on the Rights of the Child has recommended, based on a wealth of evidence and expert advice, and it is the international benchmark.

“Furthermore, it is now three years since attorneys-general began reviewing the age of criminal responsibility, and still there has been no substantive change in any jurisdiction.

“This is despite conclusive evidence, unanimous expert advice and widespread popular support for urgent action that would have an immediate effect on breaking cycles of disadvantage, reducing recidivism, and providing better outcomes for affected children, as well as increased safety for the wider community.

“While this statement from attorneys-general is a positive step, we urgently need legislation to be tabled in each Australian state and territory that would see the minimum age of criminal responsibility raised to 14 years, as per the ACT Government’s commitment in this regard.

“We acknowledge that such legislation cannot occur in isolation and must be accompanied by system-wide reform of the kind proposed in the review recently published by the ACT Government.

“We urge all jurisdictions to prioritise the twin actions of legislating to raise the age of criminal responsibility and implementing holistic systems of early intervention and diversion.

“These are clearly children who desperately need our care and protection, and we need to apply a more sophisticated approach to child wellbeing. This announcement highlights the need for a greater focus from government on the wellbeing of children generally.”

The Australian Institute of Health and Welfare reported that there were 499 children under the age of 14 who spent time in detention between June 2019 and June 2020 throughout Australia – but only 43 of those were aged under 12.

Media release – Australian Medical Association, 16 November 2021

Statement from AMA President Dr Omar Khorshid in response to a communiqué from the Meeting of Attorneys General, which met last Friday to consider a proposal to raise the age of criminal responsibility.

The AMA says the minimum age for criminal responsibility in Australia should be raised from ten to fourteen.

While we acknowledge the work being done by the Meeting of Attorney Generals (MAG) in this area of our criminal justice system, last week’s meeting was a missed opportunity to make real progress in stopping harms to children.

Agreement by MAG to consider a proposal that would raise the age to 12 falls well short of what is needed. It will result in more children being locked up and ignores the expert medical, legal and social advice on the real harm of the current laws, which in reality make kids more likely to reoffend.

Evidence shows the younger a child is at first contact with the justice system, the higher the rate of recidivism and children in contact with the criminal justice system at a young age are less likely to complete their education, find employment and are more likely to die an early death.

Raising the age of criminal responsibility only to 12 will do little to lower the number of children locked away behind bars. According to AIHW data, 456 out of the 499 children under 14 in prison in 2019-20 were aged 12-13 years old.

In a 2020 submission to the then Council of Attorneys-General – Age of Criminal Responsibility Working Group Review –  the AMA recommended an exploration of existing and proposed alternative programs to incarceration in each Australian jurisdiction and in Japan and European countries which do not incarcerate children under the age of 14 years.

The criminalisation of children in Australia disproportionately impacts Aboriginal and Torres Strait Islander children. We have a particular responsibility to this group of children, who may be suffering intergenerational trauma, to keep them out of prison and to explore culturally appropriate alternative programs.

Under the current legislative settings, Aboriginal and Torres Strait Islander young people aged between 10 – 17 are 38 times as likely to be in detention as non-Indigenous young people in some Australian states, while in the Northern Territory, at least 94 per cent juvenile detainees are Aboriginal or Torres Strait Islanders.

Ella Haddad MP, Shadow Attorney General & Sarah Lovell MLC, Shadow Minister for Child Safety, 17 November 2021

Liberals fail children on criminal age

By agreeing to raise the minimum age of criminal responsibility to 12 instead of 14, the Liberal government is once again failing Tasmania’s most vulnerable children.

Shadow Attorney General Ella Haddad said Labor supports raising the age to 14 and is disappointed that the agreement of state and federal Attorneys General does not go far enough.

“The support for raising the age of criminal responsibility from 10 to 14 is clear,” Ms Haddad said.

“The UN is calling for it, along with experts from Tasmania including the Children’s Commissioner, and others nationwide.

“Labor has made it clear that we support raising the age of criminal responsibility to 14 and we will be seeking amendments if the Tasmanian government goes ahead with legislation raising the age to 12.

“There is no evidence to support 12 being the age of criminal responsibility – rather the evidence clearly shows the younger a person is when they first encounter the criminal justice system, the more likely they are to reoffend.

“By backing this middle-of-the-road position, the government is failing young people when they need support the most, whilst doing nothing to reduce crime or keep communities safe.

“This is a once-in-a-generation opportunity to deal with the root causes of offending including youth offending, which will not only benefit young people at risk but will benefit the whole community.”

Shadow Minister for Child Safety Sarah Lovell said the Government is failing to look out for young people.

“These are vulnerable children in need of early intervention and diversion, so treating them as criminals when their brains are still developing defies logic, Ms Lovell said.

“The ACT Government, which was the first Australian state or territory to act, has committed to 14, so why have Tasmania and the other states decided that they know better and committed to 12?

“The government does not need to adhere to this national decision – they can go it alone like the ACT and do the right thing by raising the age to 14.

“We urge the Liberal government to reconsider and take meaningful action that will give these children a chance in life, not sentence them to an unjust and uncertain future.”

Media release – TasCOSS, 17 November 2021

Governments ignore advice on raising the age, let down Tasmanian families and children

TasCOSS, the Youth Network of Tasmania (YNOT) and Community Legal Centres Tasmania (CLC Tas) are deeply disappointed and concerned by the decision of the Meeting of Attorneys-General to develop a plan to raise the age of criminal responsibility to only 12 years old.

TasCOSS CEO Ms Adrienne Picone said government should heed the advice of the countless community organisations and leaders, including the Children’s Commissioners in every state and territory, who have highlighted the urgent need to raise the age of criminal responsibility to 14.

“A vague commitment to raise the age to 12 years is not good enough for our young people, their families and communities,” Ms Picone said.

“The proposed change is inconsistent with evidence from medical experts, recommendations of innumerable legal, health and community organisations who work with children and our international human rights obligations.

“Tasmanians expect the government to be responsive to community needs and evidence about what works best. This decision of the Attorneys-General flies in the face of evidence and is in nobody’s best interest.

“We know the children who are most likely to be involved in the youth justice system in Tasmania often come from disadvantaged backgrounds or marginalised communities. Tasmanian Aboriginal children, children who are experiencing poverty, children with mental health issues and children who live in areas of socio-economic disadvantage are all more likely to be involved with youth justice.

“Expert evidence shows that many children who end up in the criminal justice system have experienced trauma, abuse and neglect. These children need our care and protection, not imprisonment.

Ms Picone called on the Tasmanian Government to commit to measures we know work including early intervention and a greater range of therapeutic approaches to help children with complex needs, as well as their families.

“Children need strong families, access to education, a safe home and community support to thrive,” she said.

“Raising the age of criminal responsibility to 14 is consistent with the Tasmanian Government’s stated aims of increasing child wellbeing and community safety.

“With this in mind, we once again urge the Tasmanian Government to commit to raising the age to 14, to give our children and families the best chance at a good life.”