The ACT Government has released a position paper today that gives more detail on its commitment to raising the Minimum Age of Criminal Responsibility (MACR) through a two-stage approach.

In 2023, the ACT Government will move a single Bill to raise the minimum age of criminal responsibility to 12, and then to 14 years within the two years after that, Attorney-General Shane Rattenbury said.

The minimum age of criminal responsibility in Australia is only 10 – one of the lowest in the first world. In 2019, the United Nations called on Australia to raise the minimum age to at least 14; it was particularly concerned about the overrepresentation of Aboriginal and Torres Strait Islander children in the justice system.

Last year, the ACT Government released a discussion paper seeking public comment before drafting legislation this year to raise the minimum age to 14.

Feedback gathered throughout the consultation period identified a community expectation that there would continue to be a strong response to young people who cause serious harm, the ACT Government said today. The paper outlines an in-principle decision that:

•           There will be no exceptions to the MACR for children under 12 years – they will be completely removed from the criminal justice system.

•           Legislation will be drafted to include the option for exceptions for 12– and 13-year-olds, enabling young people aged 12 or 13 to be charged only if they are alleged to have committed the most serious of offences.

The ACT Council of Social Service (ACTCOSS) and the Australian Federal Police Association (AFPA) are cautious. One welcomes the announcement, the other is open to the proposal, and does not oppose it – but both have concerns. ACTCOSS wants no carve outs or exceptions that allow 12- and 13-year-old children to be charged with crimes, while the AFPA is worried police resources will be tied up to ‘babysit’ young people who commit crimes but cannot be charged.

• Canberra supports raising minimum age of criminal responsibility, government says (5 November 2021)
• Report reveals roadmap for Raise the Age (11 October 2021)
• ACT to raise minimum age of criminal responsibility (23 June 2021)
• Why raise the minimum age of criminal responsibility? (23 June 2021)

ACT Government ministers

Mr Rattenbury said the paper summarises key decisions and how this reform will be implemented, and that this will inform productive future discussions with community sector partners.

“This transition period allows the government to put in place the necessary range of social support services needed to support children who might otherwise enter the criminal justice system. This is a significant and complex change, being led by the ACT, and we will implement it thoughtfully and effectively.”

The government has consulted expert policy makers, stakeholders, and the wider community. “We have taken this time to consider the different needs of stakeholders, families, victims, and the young people themselves, which will feed into the legislation and system changes,” Mr Rattenbury said.

Rachel Stephen-Smith, ACT Minister for Families and Community Services, said this staged approach will give the government, in partnership with the non-government sector, sufficient time to develop and embed holistic and therapeutic supports and services for children and young people, many of whom have experienced trauma.

“The aim of MACR reform is to improve outcomes for children and young people who are at risk of encountering the justice system, and to improve community safety by preventing escalation of harmful behaviours,” Ms Stephen-Smith said. “Raising the age alone will not achieve this aim – the alternative service response will be vital.”

Emma Davidson, Minister responsible for Youth Justice, said that raising the age of criminal responsibility will re-imagine the youth justice system and shift the approach from a criminal response to a social services matter – where early intervention is key. Young people who enter the justice system are more likely to become repeat offenders, or become unemployed, homeless, or ill, Ms Davidson said.

“Many young people who engage in harmful behaviours face … mental health issues, childhood trauma, domestic and family violence, drug and alcohol issues, homelessness, and family breakdowns. For some young people, these issues are inter-generational, and these social services system reforms are an opportunity for transformational change for those families. When we have the right support in place, we can ensure our young people and their families are making decisions that keep them and our community safe.”

ACTCOSS

ACTCOSS is concerned by the Government’s decision to include carve outs or exceptions for 12- and 13-year-old children who commit serious offences.

Last year, ACTCOSS was one of nearly 50 organisations calling for the minimum age to be raised nationally to 14 with no exceptions. They argued that the current minimum age breached international human rights laws and standards, and contributed to the over-representation of Indigenous children in prison.

“This long overdue reform must not be delayed any further,” Dr Gemma Killen, ACTCOSS Head of Policy, said.

“Medical and scientific consensus is that people under the age of 14 do not have the developmental capacity to be held criminally responsible, and that detention increases their odds of reoffending. If we agree that children cannot be held responsible for minor offences, we must agree that they are not criminally responsible for more serious offences.

“This decision goes against calls from the United Nations, medical and legal experts, the community sector, and Aboriginal community-controlled organisations who have called for the for the minimum age of criminal responsibility to be at least 14 with no exceptions.”

Aboriginal and Torres Strait Islander children aged 10-13 are almost 20 times more likely to be in detention than non-Indigenous children in the ACT, Dr Killen said. Children under the age of 14 are particularly vulnerable to the harm arising from early contact with the justice system, which can result in high rates of disadvantage through life, including continued and sustained contact with the justice system.

“ACTCOSS will continue to campaign on this issue until we have raised the age to at least 14 with no exceptions,” Dr Killen said. “There is still time for the ACT Government to do the right thing and ensure that all young people are met with care and not incarceration. Keeping children out of prison is the best way to protect them, their families, and the whole ACT community.”

AFPA

“The AFPA supports legislation that will include options for exceptions for 12- and 13-year-olds, but the devil will be in the details,” president Alex Caruana said. “We’d need to see what offences the Government is proposing and how recidivism and offending will be handled.

“The AFPA will ask the Government to investigate how police can protect family members from young people who commit family violence offences.

“Legislation will have to allow police to remove a young person from a location to ensure the safety of other people.  The Government will have to work out ‘how’ this occurs.  Another question is, what do the police do with this young person?

“Again, it’s like drug decriminalisation; there aren’t enough support services available in the ACT to house young people in urgent or immediate situations if they come to the attention of police for criminal behaviour.

“This lack of services and relocation options will be difficult for police on the ground to manage. 

“What are police meant to do at 2am if no relocation option exists and the young person threatens other people’s safety or commits serious crimes?

“Police can’t legally hold that young person in custody without charge or investigation, so what safeguards will the Government be putting into place?”