Raising the age of criminal responsibility for children
BY ANTHONY CASTLE
The Salvation Army’s Policy and Advocacy Team has provided a submission to the South Australian Government in response to a discussion paper on raising the age of criminal responsibility and implementing a diversion model.
Children as young as 10 can face prison under the current law, with no current alternative diversion model for young people in the State. Mieke Waters is a Policy and Advocacy Advisor, starting with The Salvation Army’s Policy and Advocacy Team earlier this year, and prepared the submission for the inquiry.
“I am passionate about youth justice, having worked in youth homelessness in the past,” explains Mieke. “The justice system can be a life sentence. It is criminogenic itself. The younger you are, the more susceptible you are to peer influence and to peer pressure. It can set young people on a damaging path.”
Early contact with the criminal justice system is a strong predictor of reoffending and future criminalisation. The inquiry proposed raising the age of criminal responsibility from 10 to 12 years and implementing alternative diversion models to prevent young people from being given criminal penalties such as incarceration. The Salvation Army’s submission stresses safeguarding children and young people at the heart of diversion responses.
“Twelve years old isn’t enough,” says Mieke. “Children and young people aren’t fully cognitively developed. They just don’t have the same levels of reasoning as adults. When you look at the pure figures for the younger cohort in the 10 to 13 age range, there’s not very many children incarcerated, but when they are, it sets them on a negative trajectory and can lead to ongoing interactions with the criminal justice system when they get older.”
The average number of young Australians aged 10 and over that were in detention in mid-2023 was 812, with 478 being First Nations young people. A low minimum age of criminal responsibility disproportionately impacts children and young people experiencing disadvantage. Aboriginal and Torres Strait Islander children are overrepresented in the criminal justice system.
“Young people who have contact with the criminal justice system are often experiencing significant disadvantage,” says Mieke. “They become entrenched in the justice system when they are met with harsh criminal penalties, which causes further disadvantage. For young people in the 14 to 18 years age range, Aboriginal and Torres Strait Islanders were 19 times more likely to be in the youth justice system in 2022.”
Almost four in five young people in detention on an average night in 2023 were unsentenced, awaiting their initial court appearance or sentencing. Young people who are detained and not yet convicted are exposed to cultures of offending with little access to support.
“We want to keep young people in a safe space to encourage positive behaviours and learn about the consequences of their behaviour, rather than putting them all in a prison with little access to rehabilitation.” – Mieke Waters
“If they’re unsentenced, they don’t have adequate access to rehabilitation,” says Mieke. “They don’t have access to services. There’s no plan to work toward. Our frontline youth services often see justice system responses using prisons as holding spaces for young people who don’t have suitable housing.”
There remains a strong link between young people experiencing unstable housing and homelessness and later involvement with the criminal justice system. The current housing crisis can be a factor in young people experiencing disadvantage and encountering the justice system, and the justice system becomes a contributing factor to young people’s ongoing homelessness.
“My biggest worry is that if we don’t get this right, they get stuck in a damaging cycle. Once you’ve been in the justice system, if you come out and you don’t have safe housing, you don’t have access to food or support, it’s hard to live on the outside, and sometimes offending becomes necessary to survive.”
The Salvation Army supports a model where the minimum age of criminal responsibility is increased to a minimum of 14 years. The Salvation Army has recommended an alternative diversionary model should be implemented, with safeguarding children being a central component.
“What we want to see is a suitable response to offending that diverts young people out of the justice system,” Mieke explains. “If they come into contact with the youth justice system, they’re making connections, there’s role modelling and peer influence. We want to keep young people in a safe space to encourage positive behaviours and learn about the consequences of their behaviour, rather than putting them all in a prison with little access to rehabilitation.”
