Criminal Law

By Maeve Ireland-Jones


The age of criminal responsibility – the Attorney General accepting responsibility?

The age of criminal responsibility has long been a point of legal and political contention in Australia. At present, as poignantly stated by Amnesty International, ‘police have the power to arrest, strip-search and imprison children who are only 10 – typically a child in year three or four at primary school’.

For the criminal justice system, raising the age of criminal responsibility would significantly impact the processes, and matters that come before a court. It is consistently argued by parties such as the Australian Medical Association and the various law societies across Australia, that imprisoning children between the ages of 10 and 14 increases the likelihood of recidivism, can significantly impair development, and statistically affects Indigenous Australians to a disproportionate extent.

Earlier this year, ACT Attorney-General Shane Rattenbury made a commitment to raise the age of criminal responsibility in the territory from ten to fourteen. The ACT will make national history in being the first jurisdiction to move to raise the age, and significantly alter the face of criminal responsibility. This decision has not been without its fair share of pressure, as in January of this year, 31 United Nation member states called on Australia to join them in raising the age of criminal responsibility.

Before releasing the legislation enshrining the new age of criminal responsibility, Rattenbury committed to preparing a comprehensive report outlining the systems that need to be in place to adequately support young individuals who would be affected by it. As stated by Rattenbury, “we’ll need to have the right systems in place to make sure those younger kids are looked after.”

Initially planning to be released in July, the COVID-19 lockdown situation in the territory no doubt put a strain on the delivery of the report. However, on Monday morning, we witnessed the fruits of the six-month independent review, in the form of a report detailing the changes necessary to better facilitate the needs of children who will be affected by raising the age.

Led by Emeritus Professor Morag McArthur in partnership with Aboriginal consultancy Curijo and Dr Aino Suomi from the Australian National University, the review consulted Criminal justice agencies, child protection agencies, youth justice services and Aboriginal and Torres Strait Islander services.

The review laid bare the reality of the difficulties facing children in the areas of mental health, disability, drug and alcohol services. Similarly, the review revealed several issues underpinning the accessibility of preventative services and a general lack of trauma-informed care for children. A host other issues presented themselves throughout the review, particularly with respect to the lack of early intervention programs for young children.

However, Rattenbury has reassured that “This review doesn’t deter us from the challenge ahead, though. In fact, now we know how to make it happen. We know the importance of this reform and we remain committed to raising the minimum age of criminal responsibility,”

Despite the significant challenges that raising the age poses to the Government and to agencies tasked with providing support for those affected by the change, Rattenbury is evidently devoted to providing better alternatives to custody for children under 14.

Rattenbury has already made changes in other areas to facilitate an easier transition into raising the age. He has stated, “Through last week’s ACT Budget, we will be expanding the Safe and Connected Youth Program to include dedicated therapeutic respite accommodation. The program offers children and young people outreach support, therapeutic case management and family mediation with the aim of reducing family conflict and addressing the risk of homelessness and engagement with the justice system for young people aged 8 to 15.”

With the legislation set to be introduced in 2022, it is evident that there is a compelling focus on the support that will be required to implement broad changes such as raising the age. The impact on the criminal justice system remains to be seen until the legislation comes into effect, but it will undoubtedly alter who comes before the ACT Children’s Court.  It will be interesting to see whether similar legislative amendments are made at the Commonwealth level and other state jurisdictions.