The Northern Territory Council of Social Service (NTCOSS) is a peak body for the Social and Community Sector in the Northern Territory (NT) and an advocate for social justice on behalf of people and communities in the NT, who may be affected by poverty and disadvantage.
NTCOSS has a broad membership base, made up of non-government and community organisations, Aboriginal community controlled organisations, and community councils across the NT, as well as other organisations and individuals committed to social justice issues for people and communities who are socially and financially disadvantaged in the NT.
NTCOSS recognises the specific expertise of members that have a high level of contact with individuals and their families who have involvement with the youth justice system. In particular, NTCOSS supports submissions by our Aboriginal community controlled member organisations, including Danila Dilba Health Service and the Northern Australia Aboriginal Justice Agency.
NTCOSS also supports Jesuit Social Services’ submission and its accompanying research paper,
‘Raising the Age of Criminal Responsibility: There is a better way’.
INTRODUCTION
NTCOSS is pleased to contribute to the Council of Attorneys-General Age of Criminal Responsibility Working Group review.
The current minimum age of criminal responsibility at 10 years of age harms children, and in particular Aboriginal and Torres Strait Islander children. It is discriminatory, in breach of human rights standards and contemporary neuroscientific understanding of child and adolescent brain development.
The recommendations by the United Nations Committee on the Rights of the Child that all Australian Governments should raise the age of criminal responsibility to at least 14 years is the correct approach. This adoption of children’s rights is of particular importance for Aboriginal and Torres Strait Islander children and those with disability, who are overrepresented in Australia’s justice systems.
Youth offending is closely linked with entrenched social and economic disadvantage. Children who are involved in the youth justice system are more likely to have experienced child maltreatment, homelessness, mental health difficulties, substance misuse, poverty, disability, trauma, placement in out of home care, and exposure to family violence1.
Australia must do more to support children in a therapeutic way, rather than use punitive responses that are harmful and have been shown to be less effective in reducing recidivism.
PRINCIPLES FOR REFORM
NTCOSS supports the following key principles for reform as endorsed by key groups, including Change the Record, NATSILS, the Human Rights Law Centre, Amnesty International, Australian Medical Association and Jesuit Social Services:
The minimum age of criminal responsibility must be raised to at least 14 years
- The minimum age of criminal responsibility must be increased to at least 14 years across Australia, for all offences. This is consistent with contemporary evidence and understanding of child and adolescent brain development
- The current minimum age of criminal responsibility at 10 years of age has a disproportionate impact on Aboriginal and Torres Strait Islander children, with Aboriginal and Torres Strait Islander children representing almost 60% of all children in detention in 2017 – 20182. The concentration of Aboriginal and Torres Strait Islander children aged 12 years and younger in Australian youth justice systems is even greater.3
- Raising the minimum age of criminal responsibility will assist in addressing the overrepresentation of Aboriginal and Torres Strait Islander children in the justice system4, and with investment and support, will provide greater opportunities to enable and empower Aboriginal families, communities, and organisations to support children in culturally safe and appropriate ways.
- Many countries that have adopted a higher minimum age of criminal responsibility have low incarceration rates for older young people, ‘suggesting the absence of a younger cohort of children who would otherwise have become entrenched in the system through re-offending and the accumulation of a prior offending history’5
- Furthermore, detention or imprisonment of children and young people should be used only as a measure of last resort and only occur for the shortest appropriate period of time
- As argued in the NT Royal Commission’s report, the deterrent value of incarceration for children and young people is ‘far outweighed by its detrimental impacts’.6 The Commissioners found that for pre-teens and young teenagers, ‘the harsh consequences of separation … from parents/carers, siblings and extended family; the inevitable association with older children with more serious offending histories; that youth detention can interrupt the normal pattern of ‘aging out’ of criminal behaviour; and the lack of evidence in support of positive outcomes as a result of time spent in detention are all results of detention that are counter-productive to younger children engaging sustainably in rehabilitation efforts and reducing recidivism’.7
There must be no ‘carve outs’ to this legislation, even for serious offences
- The United Nations Committee on the Rights of the Child strongly recommends that the minimum age of criminal responsibility ‘does not allow, by way of exception, the use of a lower age’8.
- The relatively small number of younger children who do engage in offending behaviours are arguably the most vulnerable, and those who demonstrate more serious behaviours are arguably least competent to engage with the criminal justice system.9.
- For the small number of children who are at a high risk of causing serious harm, responses that provide multidisciplinary and intensive therapeutic support to the children and their families are needed. For example, the Children’s Hearing Scotland model, which applies a welfare approach to children’s behaviour and is designed to address specific welfare needs10
Doli incapax – fails to safeguard children and is applied inconsistently, which results in discriminatory practices
- Doli incapax is an old, common law rebuttable presumption that children lack the capacity to be legally responsible for their acts, however it routinely fails to safeguard children
- Across Australia, the presumption of doli incapax is inconsistently applied. The absence of adequate data in the NT presents difficulties in assessing the application of the principle, however the number of young children who are subject to criminal penalties suggests that it is inconsistently or is frequently unsuccessful in this jurisdiction. Furthermore, contrary to common law, the onus to establish doli incapax appears to have become the responsibility of the defence, rather than the responsibility of the prosecution to refute11. In the NT, this practice means that young defendants are subjected to bail (and often held in remand), and the principle of doli incapax is tested by way of contested hearing.12 As argued by Ng, the increasing number of young children being charged with breach of bail offences and the relatively small percentage of children held on remand receiving a custodial sentence ‘compromises the fundamental objective behind the doctrine of doli incapax and more importantly, the presumption of innocence. The very children who should be protected by the doctrine of doli incapax due to their vulnerabilities are put in custody precisely because they are subject to criminal processes such as bail, despite concerns over their ability to understand the nature and the consequences of not complying the process itself’.13
- Raising the minimum age of criminal responsibility to 14 will remove the need for courts to consider the confusing and complex doli incapax presumption.
Prevention, early intervention, and diversionary responses linked to culturally-safe and trauma-responsive services including education, health and community services should be prioritised and expanded
- The criminal justice system has both short and long term negative impacts, and limited opportunities for family and community support to assist in improving child wellbeing and behaviour. A continuum of responses is necessary for children under the age of 14 who engage in offending behaviour, ranging from early community- based family support for lower risk cases, to assessment, intervention and intensive work for children demonstrating the highest risk and needs.14
- Comprehensive, community-based, culturally appropriate, intensive family support services must be universally available across urban, regional and remote communities15
- Therapeutic, multi-disciplinary approaches have been shown to reduce recidivism, and have a sustained reduction in behavioural problems and emotional difficulties in young people16
- As recommended by the Aboriginal Medical Service Alliance of the NT, any programs and responses must be adapted to the ‘specific social and cultural context of young Aboriginal people’ and services must address all issues holistically17
- Recent reforms and the introduction and expansion of diversionary and family support programs in the Northern Territory provides Australia with examples of operational responses that will underpin raising the minimum age of criminal responsibility. For example, the ‘Back on Track’ program – an early intervention and diversion program for children aged 8 – 13 years, with a focus on restorative responses, and Danila Dilba and YWCA’s Community Youth Diversion program, (commencing in April 2020) which will accept referrals for 8 – 10 year olds, and is developing an adapted restorative process to address offending behaviour and underlying factors into the Protection and Detention of Children in the Northern Territory’
In Aboriginal and Torres Strait Islander communities, the planning, design and implementation of prevention, early intervention and diversionary responses should be community-led.
- As stated by Change the Record, policy solutions must be ‘underpinned by the principle of self-determination, respect for Aboriginal and Torres Strait Islander people’s culture and identify, and recognition of the history of dispossession and trauma experienced by many communities’18
- Consideration should be given to local decision making processes19 and community development practices, whereby people who are affected by decisions should be empowered to participate fully, through control or influence over those decisions’.20 This involves capacity building, including through opportunities to investigate evidence-based practice and support for adaptation of these practices to local context and culture, and support for innovation and local/place-based processes.
1 Dean A 2018, ‘The intersection between the child protection and youth justice systems’, Child Family Community Australia Resource Sheet – July 2018, Australian Institute of Family Studies
2 p39 Australian Institute of Health and Welfare, Youth Justice in Australia 2017–2018 (Report, 2019)
3 p15 Cuneen C 2017, ‘Arguments for raising the minimum aged of criminal responsibility’, Research Report, Comparative Youth Penality Project, University of NSW
4 p244 Australian Human Rights Commission, National Children’s Commissioner, Children’s Rights Report 2019 In Their Own Right: Children’s Rights in Australia
5 p3 Cuneen C 2017, ‘Arguments for raising the minimum aged of criminal responsibility’, Research Report, Comparative Youth Penality Project, University of NSW
5 p244 Australian Human Rights Commission, National Children’s Commissioner, Children’s Rights Report 2019 In Their Own Right: Children’s Rights in Australia
6 p419 Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, November 2017, Vol.2B
7 ibid
8 p.9 United Nations Committee on the Rights of the Child 2019, ‘General Comment No. 24 (201x), replacing General Comment No. 10 (2007) Children’s rights in juvenile justice’, United Nations Human Rights Office of the High Commissioner
9 Farmer E 2011, ‘The age of criminal responsibility: Developmental science and human rights perspectives’ in
Journal of Children’s Services 6 (2) 86 – 95
10 Jesuit Social Services 2019, ‘Raising the Age of Criminal Responsibility: There is a better way’ https://jss.org.au/wp-content/uploads/2019/12/JSS0102_Raising_the_Age_There_is_a_better_way_v.5.1.pdf 11 O’Brien, Wendy and Fitz-Gibbon, Kate 2017, The minimum age of criminal responsibility in Victoria (Australia): examining stakeholders’ view and the need for principled reform, Youth Justice, vol. 17, no. 2, pp. 134-152.
12 Ng C 2019, ‘Applying the Doli Incapax Principle in the Northern Territory: the implications and the way forward’,
13 ibid
14 Hackett S, Branigan P and Holmes D (2019) ‘Operational framework for children and young people displaying harmful sexual behaviours’ second edition, London NSPCC
15 https://www.naaja.org.au/wp-content/uploads/2018/11/APONT-NAAJA-Joint-Report-to-the-UN-Committee- on-the-Rights-of-the-Child.pdf
16 Porter M and Nuntavisit L 2016, ‘An Evaluation of Multisystemic Therapy with Australian Families’, The Australian and New Zealand Journal of Family Therapy 37 (4) 443 – 462
17 p31 Aboriginal Medical Services Alliance NT (AMSANT) 2017, ‘AMSANT Submission to the Royal Commission
18 p5 Change the Record Coalition 2015, Blueprint for Change: Changing the Record on the disproportionate imprisonment rates, and rates of violence experienced by Aboriginal and Torres Strait Islander people
19 For example, see New South Wales’ Local Decision Making https://www.aboriginalaffairs.nsw.gov.au/working-differently/local-decision-making/about-local-decision- making and the Northern Territory’s Local Decision Making, which includes the Lore and Justice Group in Gunbalanya and Law and Justice Group in Maningrida https://ldm.nt.gov.au/about-ldm/top-end
20 p.10 Morley S 2015, ‘What works in effective Indigenous community-managed programs and organisations’,
Child Family Community Australia, Paper no.32