Jeremy Lasek & Malcolm Baalman – PHAA
The timing was impeccable.
Just as the ACT’s Attorney-General, Shane Rattenbury MLA, was preparing to address the PHAA’s Justice Health Conference last week, the ACT Government released the results of public consultation which showed overwhelming community support for a proposal to raise the minimum age of criminal responsibility to 14.
The ACT Government received 52 community submissions to its discussion paper on the matter, with 90 per cent in support of raising the age to 14. Most said there should be no exemptions for serious crimes committed for people under the age of 14.
Currently, a person is held criminally responsible from the age of 10 in the ACT and most Australian states.
Shane Rattenbury is committed to the nation-leading proposal, which was a 2020 election promise from the party he leads, the ACT Greens.
Mr Rattenbury and his ministerial colleague, Emma Davidson, both told the Justice Health Conference that ‘raising the age’ was a priority for this term of government.
Raising the age of criminal responsibility is also the subject of the ongoing #RaiseTheAge national campaign, supported by a broad alliance of organisations in the health, justice, human rights, social welfare and other sectors.
Adjunct Professor Terry Slevin, CEO of the Public Health Association of Australia, said incarceration of children had long-term negative implications not only on the health and development of the individuals concerned, but on their families and wider society.
“It’s entirely counterproductive to incarcerate a child. We need to look behind the actions in question – which often involve violence or other problems of behaviour – and solve the actual problems,” said Slevin.
“We also need to recognise that, deplorably, incarceration of kids aged 10-13 is very heavily happening to Aboriginal and Torres Strait Islander people. Bringing this problem under control is a key component on closing the ‘gaps’ in relation to health, justice and other disparities in our society.”
The following is an edited version of Mr Rattenbury’s closing address to the conference.
Towards a better future
‘Undoubtedly this is a familiar topic for many of you in virtual attendance today, whether you’ve been reading the news or whether you’ve been diving into the fine detail. Today, I want to discuss why it’s so important and how we get to this better future.
‘As you know, the theme for this conference is, “Evidence. Accountability. Action.”
‘Those are all important concepts for every kind of program or policy. But especially when it comes to raising the age, they are all subject to intense scrutiny.
‘However, before grappling with those questions, I believe the important starting point is to ask ourselves why this matters so much. Where do we see ourselves getting, when we consider raising the age?
‘You can look at it through the lens of children in prison or on non-custodial criminal orders – we know how much that harms them. But you can also look at it optimistically. These children are acting out because of unmet need. But even if they’re not getting sent to prison or put on orders, the best-case scenario is that they are sent away, and that need remains unmet. That’s what is so exciting about this change – once we have a sufficiently developed service landscape, we can do tremendous good by these kids.
‘So: evidence. What does the evidence tell us about the age of criminal responsibility? Well, there’s a multitude of evidence that tells us that kids who are acting out at such young ages do so because of trauma, mental health problems, substance issues, and family problems. All of these social determinants of crime, and at an age when the brain is still developing.
‘The neurological evidence tells us that a child’s brain is not sufficiently capable of the foresight and complex decision-making processes involved in harmful behaviour that, at the moment, we would describe as ‘criminal’. So, when we ask ourselves the moral question, “Is it appropriate that children can be arrested and charged for an offence?”, there is clear scientific evidence that the answer is, “No.”
‘The evidence also tells us that offending at such a young age is almost always because of trauma, mental health problems, disadvantage, or social problems. I’m very proud to say that the ACT Government has formally adopted a justice reinvestment policy stance, most prominently through our ‘Building Communities, Not Prisons’ program. We want to put our emphasis on investing money in people and communities, providing services and supports that build people up, rather than investing in punitive criminal justice mechanisms and building ever-bigger prisons. That’s what the evidence tells us works for the justice system generally, but even more clearly when it comes to children.
‘And the evidence shows us that a criminal justice response often tends to intensify and entrench those social determinants of offending. That’s both logically sensible, as well as clearly the case, given the shockingly high number of kids first imprisoned under the age of 14 who then end up going to prison again and again and again.
‘But again optimistically, the evidence shows us that the solutions are within reach. It is clear that investing in the health and wellbeing of kids using harmful behaviours gives them a much better chance of taking a better path, to live a happier and healthier life.
‘And of course, that’s both beneficial for the child, and it’s better at keeping everyone else in the community safe. It’s what building communities, not prisons, looks like.
‘And that brings us to accountability. There are two different kinds of accountability I think are important here. There’s the accountability of us, as the Government, to both deliver on what we’ve promised, and to take responsibility for assisting our communities. And then, I think it is apt to talk about the responsibility of kids in this process.
‘Raising the age was a commitment of the Greens in the 2020 election, and now it’s in the Parliamentary and Governing Agreement for this term. We’ve clearly committed to it, and so we have to be accountable in making sure we deliver it. We have to make sure we do it without unnecessary delay, but in terms of our accountability and responsibility, we have to make sure we get it right as well.
‘That means not taking a simplistic approach. We have to make sure we think through the detail – how will this new age work with children over the border, or currently in the criminal justice system? How will victims of this harmful behaviour be treated? What’s the best way to encourage engagement with these support services? There are all important things to get right, so that we don’t leave a vacuum of responsibility.
‘That’s why we’ve committed to building this new approach with the community. We’ve put out a discussion paper and received really valuable feedback that will help us craft the new laws. We have also received and released an expert report by Emeritus Professor Morag McArthur, to assist in developing the service landscape.
‘We’re doing this for the kids in the ACT, but we’re also keenly aware of our role in the nation in forging this path. We know that interstate eyes are on us with this, which underscores the importance of making sure that we’re confident when we take that bold next step. We won’t let the perfect be the enemy of the good, but we also want to make sure that it’s the foundation for genuine positive change in the lives of the kids who rely upon us.
‘It’s also important to note that while kids are developing, as much as they certainly don’t need a punitive approach to push them down, there is still a need for accountability. That’s part of living in the world, and children need to know there are limits to what is appropriate. We are keeping sight of the goal here: to help build children up into happier, healthier adults.
‘And lastly, we come to action. In many respects, I’ve already flagged much of the action we’ve taken so far. And that is fantastic progress. I’m very grateful to everyone who has contributed to that, both within the Government and our committed public servants, and to all our community sector partners, as well as the academics who have made this possible. The progress thus far has been a real team effort.
‘However, I’m keenly aware that it’s not done until it’s done. That is why I am making sure not to let up. Even when you figure out where you’re going, the getting there involves some work.
‘There absolutely are answers to the question, “If not criminal justice, then what?” And the answer, as it so often is, is, “The community.”
‘That’s a bit of an oversimplification, as the answers to each of those difficult scenarios that a child can find themselves in inevitably require a different approach. But the good news is that it’s a radical change that is within our reach. It’s an achievable goal, with practical steps along the way.
‘We need bold vision to make serious improvements to people’s lives. But we also need to turn that bold vision into reality, and with careful thought and planning, it’s absolutely possible.’