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Law Council of Australia


Opinion piece: We lock up kids as young as 10 - let's end this national disgrace

28 November 2019

Opinion piece by Law Council of Australia President, Arthur Moses SC - published in the Sydney Morning Herald, Thursday, 28 November 2019.

When a 12-year-old Aboriginal boy addressed the United Nations Human Rights Council in Geneva last month, his message cut through layers of political rhetoric. Dujuan Hoosan, an Arrernte and Garrwa boy from Alice Springs, told the Council in simple but poignant terms: “I want adults to stop putting 10-year-old kids in jail.”

“Adults never listen to kids like me,” he said. “But we have important things to say.”

Despite his youth, Dujuan knows more about the incarceration of young people than most – he has seen its devastating impacts and knows kids who have been locked up. He almost ended up in jail himself at age 10 but, thanks to the support of his family and community, has set himself on a different path: as an advocate.

Dujuan is giving a voice to a national tragedy that many Australians are unaware of and one most politicians have little appetite to address. Anywhere in Australia, a primary school child – a child in year 4 – can be imprisoned.

On Friday, the Council of Attorneys-General has an opportunity to take an historic step towards addressing this national disgrace. The state, federal and territory ministers will consider the results of a year-long review into increasing the minimum age of criminal responsibility.

The Law Council believes prison should not be a rite of passage for any child. In June, our directors unanimously voted to support an increase of the minimum age of criminal responsibility from 10 to 14, aligning our position with that of Indigenous and medical bodies and international best practice.

As it stands, our current laws isolate some of our community’s most vulnerable and stigmatised children. It sows the seeds for future problems.

A recent report from the Australian Institute of Health and Welfare highlights that half of the young people under youth justice supervision between 2014 and 2018 had received child protection services, which can include out-of-home care. It reiterates that children who have been abused or neglected are at greater risk of coming into contact with the criminal justice system at an early age.

Life trajectory outcomes for young people forced into contact with the criminal justice system are grim. They are less likely to complete their education or find employment and are more likely to die an early death.

It disproportionately affects Indigenous young people. Aboriginal or Torres Strait Islander young people aged 10 to 17 are 23 times more likely to be in detention than non-Indigenous young people, jumping to 38 times in some states. In the Northern Territory, at least 94 per cent of detainees in juvenile detention are Aboriginal or Torres Strait Islander. At times, this statistic has been 100 per cent.

The current minimum age of criminal responsibility is out of step with medical consensus regarding child brain development. Scientific advances related to the understanding of child cognitive development favour a higher age.

Children under 14 are undergoing significant growth and development, which means they may not have the required capacity to be criminally responsible. Immaturity can affect a number of areas of cognitive functioning including impulsivity, reasoning and consequential thinking.

Australia’s youth detention system represents a false economy. It costs about $531,075 a year to keep a young person in detention-based supervision. This money would be better spent on early intervention, diversion, rehabilitation and prevention – programs that address the underlying causes of criminal behaviour and help prevent future offending. In the long term, this would amount to big savings.

I want to be clear: we believe children under 14 should be held accountable for their actions, but they should not be held criminally responsible.

Given that children are more likely to commit future crimes the younger they enter the criminal justice system, it does not advance community safety to put them on this pathway at such an early age.

It is important to emphasise that only an exceptionally small number of young children commit very serious crimes such as homicide. When this occurs, it is an aberration.

Change will take political courage but politicians across all jurisdictions must come to the realisation that raising the minimum age of criminal responsibility is not being soft on crime. It is an investment in social capital.

Because imprisonment should be a last resort when it comes to children.


Arthur Moses SC
President, Law Council of Australia



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