greater numbers as a result of these laws. The laws have impacted disproportionately on young Indigenous offenders. Indigenous children in WA are now 52 times more likely than non-Indigenous young people to be in detention – twice the national rate of overrepresentation. Over 81% of the 119 individual juveniles sentenced under the legislation were Aboriginal. Moreover, 61% were from nonmetropolitan areas and of these 93% were Aboriginal.18 The laws have had no impact on rates of home burglary and run counter to the recommendations of the Royal Commission into Aboriginal Deaths in Custody.19 The Law Council of Australia20 and Law Society of Western Australia21 have consistently opposed the use of mandatory sentencing regimes. The Law Society wrote to members of parliament expressing its serious concern with the proposed new mandatory sentencing under the Criminal Law Amendment (Home Burglary and other Offences) Bill 2014 (WA) and urged that the Bill be opposed.22 Notwithstanding the Society’s opposition, the Criminal Law Amendment (Home Burglary and other Offences) Act 2015 (WA) was passed. This Act imposes mandatory sentences for serious offences of physical or sexual violence committed in the course of an aggravated home burglary, which include a minimum sentence of 75% of the statutory maximum term of imprisonment for adults and, where the maximum is life imprisonment, a minimum of 15 years applies and a minimum sentence of three years’ imprisonment for juvenile offenders. Western Australia is the only jurisdiction that still uses mandatory sentencing laws against children. The Northern Territory previously had similar three-strike laws but repealed them in 2001 after the suicide of a 15 year old boy who was mistakenly mandatorily detained.23 Mandatory minimum sentences upon conviction for criminal offences are opposed because they impose unacceptable restrictions on the exercise of judicial discretion and independence, which are essential to the application of the rule of law. They are inconsistent with Australia’s voluntarily assumed international human rights obligations, because of their arbitrariness and limitation on the right to a Aboriginal and Torres Strait Islander imprisonment rate(a), by states and territories, Dec 2019, Sep 2020 and Dec 2020
4,000
Minimum age of criminal responsibility In Australia, the age of criminal responsibility is just ten years old. This is seriously out of step with international standards. In 2019, the United Nations Committee on the Rights of the Child recommended 14 years as the minimum age of criminal responsibility. While the United Kingdom also has a minimum age of ten, most European nations have a minimum age of 14 years or higher. According to the Australian Institute of Health and Welfare, in 2018-19, 773 children under 14 were placed on court orders requiring supervision in the community by youth justice officers. More than 570 were placed in juvenile detention. Some 65% of these two groups were Aboriginal and Torres Strait Islander children. There are many well-founded and compelling reasons for increasing the minimum age of criminal responsibility in Australia to 14.25 These include:
The dramatic and devastating impact on Aboriginal and Torres Strait Islander children, given the high numbers of Indigenous children aged ten to 13 in the youth justice system. Child development evidence showing children under 14 lack impulse control and have a poorly developed capacity to plan and foresee consequences. The disproportionate number of children coming from the child protection system into youth justice. According to a 2017 Australian Institute of Health and Welfare report, three in five children aged ten at the time of their first youth justice supervision were also in child protection. Community-based corrections rate(a), By states and territories, Dec 2019, Sep 2020 and Dec 2020
600
3,000
rate
rate
Mandatory sentencing regimes are also costly and ineffective in deterring crime.24
800
5,000
2,000
NSW
Vic
Qld
Dec Qtr 2019
SA
WA
Sep Qtr 2020
Tas
NT
ACT
Aust
400
Dec Qtr 2020
a) Rate is the number of prisoners per 100,000 adult Aboriginal and Torres Strait Islander population. Based on average daily number. Source: Australian Bureau of Statistics, Corrective Services, Australia December Quarter 2020.
8 | BRIEF JUNE 2021
0
The high numbers of children in the youth justice system with mental health issues and cognitive impairment. A 2018 study found nine out of ten young people in Western Australian youth detention were severely impaired in at least one area of brain function. This obviously affects whether they can understand rules and instructions. The evidence also showing the earlier a child enters the justice system, the greater the likelihood of lifelong interaction with the justice system. The fact that young children in the justice system have high rates of preexisting trauma and are “physically and neuro-developmentally vulnerable”. Unsurprisingly, criminalisation and imprisonment have a further negative impact on a child’s development. As the Royal Australasian College of Physicians notes: Young children with problematic behaviour, and their families, need appropriate healthcare and protection. Involvement in the youth justice system is not an appropriate response to problematic behaviour. Social Justice Reinvestment WA has released a report26 saying that raising the age of criminal responsibility from the current level of 10 years to 14 years is needed if the state is to avoid high levels of juvenile imprisonment, including 143 children aged 10 to 13 years in unsentenced detention in 2018-19. It would prevent the arrest and detention of children on minor offences, such as an 11-year-old Aboriginal boy who was caught stealing a $5 pen and $4 pencil, according to the report and in another case, a 10-year-old Aboriginal boy was charged with criminal damage after he and another case of a child who broke a window to gain entry to an abandoned house. The report says that in 2020, the Aboriginal Legal Service received 4753 notifications for Aboriginal children apprehended and detained in a police facility. SRWA co-chairs Glenda Kickett and Daniel Morrison said the majority of children were taken into police custody because of alleged offending behaviour. “Children who are detained by police are usually kept in a police cell until they are released or can be transported to court or to Banksia Hill Detention Centre; they are held in the same concrete cells used to detain adults.” In regional areas, an offending child detained by police may spend days in a police cell before the child can be transported to Banksia Hill, the state’s juvenile detention facility in Perth.
200
1,000 0
fair trial, preventing penalties based on the unique circumstances of each offence and offender.
NSW
Vic
Qld
Dec Qtr 2019
SA
WA
Sep Qtr 2020
Tas
NT
ACT
Aust
Dec Qtr 2020
a) Rate per 100,000 persons for the state/territory of interest. Source: Australian Bureau of Statistics, Corrective Services, Australia December Quarter 2020.
The SRWA report points out that raising the age of criminal responsibility to 14 would help meet a commitment in the new national agreement on Closing the Gap to reduce the
