“There are no children 12 or younger incarcerated in the ACT and in the years 2008 to 2020 a total of four children under 12 were held on remand at Bimberi, that is an average of one child every three years,” writes JULIE TONGS.

TWO years ago, in the months leading up to the last ACT election, the ACT Greens and ACT Labor made unequivocal and unambiguous promises to raise the age of criminal responsibility in the ACT from 10 to 14.

Just two weeks ago the ACT Greens and ACT Labor announced they would break that promise and, instead, at some yet to be specified time, raise the age of criminal responsibility from 10 to 12. 

Considering the massive over-representation of Aboriginal children in contact with the child protection and justice systems in the ACT, and incarcerated as juveniles and adults, this is an issue of major concern to the Aboriginal community. 

I’m sure that the Labor/Greens backflip did not involve a reassessment of the merits of the case for raising the age. The case for change is impossible to deny. The only remaining explanations for such a fundamental shift in intent would seem to be either a concern that the change of age to 14 would generate a political backlash or, alternatively, it would cost more than the government was prepared to spend.

The reason I mention cost is because, having read the excellent report prepared by emeritus professor Morag McArthur at the request of the ACT government, I am aware of the resource implications of the change of age to 14.

She reported on the level and nature of the wraparound and case-management services and infrastructure, in particular, the need for crisis accommodation as well as permanent housing, which the government will need to fund to support those children and families diverted from the criminal justice system, 

In this regard, it’s telling that Prof McArthur’s report was presented to the government more than a year ago and not only have I not been consulted about any aspect of the report or its recommendations, many of which are Aboriginal specific, I’m unaware of any consultation on the report, let alone action on or funding for its implementation. 

It is notable that, in announcing its decision to restrict the increase in the age of criminal responsibility to just 12 years of age, the government did not indicate what proportion of children in the ACT, who have historically been charged with a criminal offence or detained at Bimberi were in fact under 12. 

In this respect it is notable that there are currently no children 12 years old or younger incarcerated in the ACT and in the years from 2008 to 2020 a total of four children under 12 were held on remand at Bimberi, that is an average of one child every three years. This does raise a question of roughly how many children, if any at all, will be materially affected by increasing the age to only 12 years.

The relevance of this has been highlighted by the Human Rights Law Centre and the Victorian Aboriginal Legal Service who recently advised that if all state and territory governments were to raise the age to 12, as the ACT proposes, then 456 of the 499 children under 14 in detention across Australia in December last year would remain behind bars.

They also note that 65 per cent of the younger children in detention in Australia are Aboriginal and/or Torres Strait Islanders.

These two services have summarised their opposition to raising the age of responsibility to 12 and not 14 in the following terms. I agree entirely with what they say.

• “A proposal to develop a plan to raise the age of criminal responsibility to 12 years old is an absolute missed opportunity to look after children.”
• “Both medical evidence and international standards put 14 years as the minimum age a child should be held criminally responsible. The proposal (to increase the age to 12) is completely out of step.”
• “After years of legal and medical experts making it very clear that the age of criminal responsibility must be at least 14 years old it is nothing short of devastating to hear that … the decision has been made not to raise the age to 14. That human rights norms, indisputable medical evidence and Aboriginal voices have been ignored, is shocking.”
• “This proposal would see 12-year olds who are in grade 5 or 6 and only just starting to walk to school by themselves – arrested by the police, hauled before the courts and sent to prisons.”
• “That Aboriginal children will continue to be locked up, at alarming rates, is simply unacceptable. The impact of this decision will further entrench the systemic disadvantage experienced by Aboriginal children.” 

In light of the above trenchant criticism, I would welcome an explanation from Attorney-General Shane Rattenbury, Indigenous Affairs Minister Rachel Stephen-Smith and Youth Justice Minister Emma Davidson of the basis of their decision to “ignore international standards, human rights norms, indisputable medical evidence and Aboriginal voices” in deciding against raising the age to 14 years.

Julie Tongs is the CEO of Winnunga Nimmityjah Aboriginal Health and Community Services.