Imprisoning children: Australia's criminal responsibility laws

By NELL SALVONI


The media spotlight on the Black Lives Matter (BLM) movement this year has awakened many to the realities of systemic racism within what are supposedly fair justice systems around the globe. The spotlight has fallen primarily on the USA following the death of George Floyd and a further catalogue of incidences of police violence against Black citizens. Yet, many other countries also see racial biases within law enforcement leading to violence towards, and the disproportionate incarceration of, Black, Indigenous and People of Colour. Australia is one country in which systemic racism, particularly within the justice system, enhances the oppression of its Indigenous population.


Despite comprising around 3.3 percent of Australia’s population, as of 2019 Aboriginal people made up 28 percent of Australia’s total adult prison population. Not only are Aboriginal adults overrepresented, young Aboriginal people comprise 70 percent of the 600 under-14s in youth detention across the country. Children in Australia can be charged, prosecuted and imprisoned as adults from the age of 10, an age considered too low by the Australian Human Rights Commission, the Australian Medical Association and the UN. Following sustained campaigning by these organisations, charities, Aboriginal peoples’ groups, celebrities and the public, the Australian Capital Territory has become the first jurisdiction to agree to raise the minimum age of criminal responsibility (MACR) to 14.


Although Australia is commonly portrayed as a modern and liberal nation, it has long been an international outlier in their implementation of such a young MACR. The UN’s Committee on the Rights of the Child has stated that 14 should be the minimum age, arguing that it would bring criminal law in line with neuroscientific evidence which highlights the still maturing brain of adolescents.

Last year an Arrernte/Garrwa boy from Central Australia spoke to the Human Rights Council at the United Nations about his experiences of the criminal justice system, calling for Australia to raise the MACR. Dujuan Hoosan came close to being incarcerated at the age of 10 after running away from school and is now raising awareness around how Aboriginal children are penalised by the law, as well as by a largely white education system. “I want my school to be run by Aboriginal people, I want adults to stop being cruel to 10-year-old kids in jail,” the 12-year-old said in his speech. Dujuan also argued that placing children into detention at such young ages acts as a form of training ‘for bigger jails’, an argument used by lawyers and psychologists when pushing for an increase in the age of criminal responsibility.

Yet, Federal Attorney-General Christian Porter said in 2019 that the current age is justifiable and sufficiently flexible to suit different offences, and that he is not “overly enthusiastic” about proposed changes to it. Conservative Aboriginal activist Jacinta Price has criticised the focus on imprisoned Aboriginal people, rather than their victims. “It’s not racism that is killing our people, it is the actions of our own people”, Ms Price said on Sky News. However, this narrative seriously detracts from the deeper causes of crime among Aboriginal people, such as the lower socioeconomic status, living conditions and poorer health of Australia’s Aboriginal population when compared to their white counterparts. The root of such disparities is the colonisation of Australia by the British over 200 years ago, with the subsequent laws and dispossession of land they imposed on Indigenous people resulting in deprivation and the othering of Indigenous people in their own homeland for generations. A vicious cycle of disadvantage leading to criminalisation has been compounded by placing young people in detention. By limiting the societal outcomes of ex-offenders through plaguing young people with criminal records, Australia may be perpetuating this issue and increasing reoffending rates.

So how can oppression through the criminal justice system be alleviated? A 2018 inquiry into the Aboriginal incarceration rate concludes that there should be a nationwide “reinvestment of resources from the criminal justice system into community-led, place-based initiatives that address the drivers of crime and incarceration”, in order to redress the balance. However, two years on this inquiry and other initiatives have achieved little to no concrete change, with a parliamentary bill concerning the MACR failing to pass.

Despite Australians generally viewing their country as a commonsensical, liberal bastion of justice, what many recognise as being the fairest policies often fail to replace outdated laws. As psychologist and Nyamal member Dr Tracy Westerman puts it, “I am yet to hear a coherent argument about why we should keep the age as it is. I do not understand the rationale for imprisoning children." Unfortunately, this moral argument alone has not, so far, been enough to enact reform. This move by a singular, small territory, albeit a promising step forward, has been a long time in the making, and it could still be a long time until we see the MACR raised across the entirety of Australia.


IMAGE - Unsplash.