Kids As Young As 10-years-old Can Be Locked Up In Australian Prisons

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The age of criminal responsibility in Australia is 10 years oldFor most of the world, that age is set at anywhere between 12 and 16.  

It’s a detail written into our law that seriously harms kids in Australia and disproportionately affects First Nations communities. 

So, why does Australia have such a low age for criminal responsibility, and what are the consequences for our communities when 4th graders can be put behind bars?  

Last year there were 573 kids between 10 and 13 years old locked up in detention centres around Australia.  

Shahleena Musk: These are kids who can’t even get a flight by themselves – who aren’t even allowed to own a facebook account – who are now being arrested by police, locked in prison cells and subjected to abuse by officers at crucial stages of their development.” 

That’s Shahleena Musk, she’s a senior lawyer with the Human Rights Law Centre, which is currently running the Raise The Age campaign to change Australia’s age of criminal responsibility.

She said that First Nations communities are also totally disproportionately affected by the age of criminal responsibility in Australia.  

Of those 573 kids under the age of 14 who were locked up in detention centres last year, 65% were Indigenous.  

SM: “Police have broad discretion when it comes to whether [these kids] are diverted or charged and unfortunately, Indigenous kids are more likely to be charged. 

Australia has been criticised repeatedly by the United Nations for falling behind global standards by locking up children this young. But the government has been really reticent to change.  

Last year the federal Attorney-General Christian Porter, said he wasn’t enthusiastic about raising the age. 

His argument for keeping it, is that it supposedly allows for flexibility in charging a child under 14 who has committed a very serious offence.  

But here’s the thing10-year-old kids aren’t being locked up in Australia for serious offences.  

SM: Most of them are for offending that’s property related so theft, unlawful entry, stealing a car. There’s justice related offending so like a breach of bail  they’re not offending violently, they’re not serious offences, they’re offences that can be responded to in the community. 

Setting the age so young is also just not in line with the medical research.  

The consensus from neurologists is that a 10 year old really doesn’t have the cognitive capacity to tell right from wrong and they haven’t matured enough to hold criminal intentions.  

The UN recommended 14 as the age of criminal responsibility for all countries last year. The recommendation came two weeks after this speech when Dujuan Hoosan, from Arrernte and Garrwa Country, became the youngest person ever to address the United Nations Human Rights Council. In his address he said, “I want adults to stop putting 10-year-old kids in jail.”  

Even with that age recommendation, the UN also stipulated that children shouldn’t be allowed to enter detention until 16.  

So, what are the biggest issues with how the age of criminal responsibility works in Australia right now? 

Musk told me that children who end up committing criminal offences at ten years old are generally victims of family violence, abuse and neglect.  

By keeping the age of criminal responsibility that young, the justice system is punishing some of Australia’s most vulnerable kids.  

SM: They’re putting them in a place like Don Dale [Youth Detention Centre in the Northern Territory] where – as the royal commission has shown – is notorious for abuse of kids. Kids subjected to routine strip searching, solitary confinement, restraints, handcuffs, strapped in a chair with a hood over [their] head – these are the sort of practices that are being uncovered in places like Don Dale. 

Musk said there are much better community alternatives for dealing with young offenders and when a 10 to 1year old child is put in a detention centre, there’s a 95% chance they’re going to end up back in prison later in life.  

Last year, the COAG Council of Attorney’s General agreed to look at the possibility of raising the age and they commissioned a review of the problem. But there’s really been no commitment to change beyond a meeting that’s happening in the ACT this week.  

SM: We want state and territory governments to raise the age from 10 to 14 and that means changing the criminal code  do the right thing, follow the evidence, follow the best practice internationally. 

The Takeaway 

Australia’s age of criminal responsibility is a surprising and horrendous detail of our criminal justice system and it has broad consequences for communities.  

Not only because it violates the rights of Australian children but because it punishes kids from our most vulnerable communities and essentially guarantees them a lifetime of problems with the criminal justice system.