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As crossbencher Rebekha Sharkie pushes to raise the age of criminal responsibility from 10 to 14, experts point to the long-term detrimental effects of early incarceration and a disproportionate racial factor in detention rates. By Mike Seccombe.

Children in the criminal justice system

Every year, some 600 primary-school-age children are locked up in Australia.

These kids, aged 10 to 13, are overwhelmingly Indigenous. Most have physical and/or intellectual disabilities, traumatic personal histories and impoverished backgrounds. Almost all have committed only minor crimes; many have committed no proven crime at all.

This, says Rebekha Sharkie, is a great shame on our country. Australia remains one of the few among developed nations – indeed among all nations – that allows children so young to be prosecuted for crimes as though they were adults.

Across all of continental Europe, most of Asia, Africa and South America, the median age at which children are deemed to have criminal responsibility is 14. In many countries it is 16 and, in several, 18. Even under the authoritarian regimes in China and Russia it is 14. Australia is very much an outlier in dealing with such young children through the criminal justice system. Although the furthest outlier remains the United States, where 31 states have no minimum age.

The United Nations Committee on the Rights of the Child advocates 14 years at a minimum, and only last month criticised Australia, again, for having failed to revise the age.

And that is why Sharkie this week tabled legislation to increase the minimum age of criminal responsibility from 10 to 14.

She was supported in her move by only a handful of her fellow federal parliamentarians – crossbenchers Zali Steggall, Helen Haines, Andrew Wilkie and Jacqui Lambie, along with the Greens.

There was no public support from either of the major parties, which are alert to the political danger of being seen as “soft on crime”. And while Sharkie says she has received private acknowledgement from a number of government and Labor players that things need to change, she fully expects her bill to languish, unselected for debate by the committee that decides legislative priorities.

“But I wanted this on the table,” she says. “My hope is that we could at a federal level show leadership and start this conversation in a parliament and look for it to flow through to other parliaments.”

For the detention of young children is not just a federal matter. In fact, it is primarily governed by the states and territories.

There is a huge body of evidence showing the punitive regime is a multifaceted tragedy for the children involved, damaging their educational and employment prospects, further traumatising them and likely contributing to rates of suicide. It is also utterly counterproductive, in that it encourages more crime. And it achieves these negative outcomes at vast cost to the taxpayer.

The latest addition to this evidence came on Tuesday, the day after Sharkie tabled her bill, with the release of new data from the Australian Institute of Health and Welfare (AIHW).

From July 2014, the institute tracked children aged between 10 and 14 over four years.

“Just over half (2,653 or 55%) of young people who spent time in detention also received child protection services at some time between 1 July 2014 and 30 June 2018. This was almost 10 times the rate of child protection service use for the general population,” the AIHW found.

Among girls, the rate was more than 70 per cent. Younger children were far more likely to have been subject to child protection.

And while the pattern was similar for Indigenous and non-Indigenous kids, there is a disproportionate racial factor in detention rates.

According to the Australian Bureau of Statistics, Indigenous people make up about 3.3 per cent of the Australian population. But Aboriginal and Torres Strait Islander children comprise 70 per cent of the 10- to 13-year-olds in detention in any given year.

According to another AIHW report, released in May this year, “Indigenous young people aged 10-17 were 26 times as likely as non-Indigenous young people to be in detention on an average night.”

The findings also underline a sad reality behind offending by young children – usually these kids were victims themselves before they became perpetrators.

“So, we’re criminalising vulnerability and criminalising trauma,” says Shahleena Musk, senior lawyer with the Aboriginal and Torres Strait Islander Rights Unit at the Human Rights Law Centre.

Musk talks in terms of the data and also personal experience, having worked for more than a decade “at the coalface” among kids in Western Australia and the Northern Territory.

“These are often children who have histories of trauma, [and have been] subjected to neglect or abuse, and this is quite evident in their behaviours at four or five. But the system is not working with those children in an informed or responsive way to ensure appropriate interventions,” she says.

Instead, their physical and mental health, their connections with family, peers, community and education are left to deteriorate.

But, as Musk adds, “When we look at those children 10 to 13 who are coming to courts, they are not coming through really serious offences. They are coming through for antisocial behaviour or damage to property, stealing, unlawful use of a motor vehicle. And they are ordinarily committing those offences with other young people.”

Musk cites a Northern Territory case in which she was involved, where three children who had been removed to residential state care were mucking up at dinner, “spraying tomato sauce and throwing food about”.

They wouldn’t stop and the matter quickly escalated. The care worker called the police, saying they were damaging property.

“These kids went and sat on the roof because they had other matters outstanding or had histories of involvement with police and were afraid of being arrested,” Musk recounts.

“So, they get arrested and two of them get remanded in custody because of their prior history. And these charges get set for hearing. And we write [asking the police and prosecutors] to withdraw the charges, saying this is not criminal behaviour. This is kids being kids.”

But the charges were not withdrawn and the food fight, which made a mess but actually damaged no property, “went to a full-blown hearing”.

In the end, a magistrate accepted that such a trivial matter didn’t warrant the intervention of the criminal legal process and threw the charges out.

“But, in the meantime, the two who had [a criminal] history spent time on remand for these charges and then were subject to bail conditions pending the hearing. What does that do?” asks Musk.

“Of course, the relationship with the resi [residential] carers becomes quite strained. It was just a cavalcade of errors, which undermined the safety of these kids and served to reinforce the kinds of behaviours that we’re trying to change.”

And there’s the rub: treating children like criminals is more likely to make criminals of children.

“The recidivism rate is much higher when kids come into the system younger,” says Musk.

“For those kids who are first sentenced to a community-based order – a good-behaviour bond or supervised, suspended sentence – 90 per cent of those of them who are aged 10 to 12 … come back before the courts again within 12 months. When a kid gets sentenced to detention, it’s 94 per cent.

“Conversely, the older they are at first contact with the justice system, the lower the recidivism rate. So it’s 79 per cent if they are 13, 67 per cent if they are 14, 49 per cent if they are 15.”

Musk says children lack the ability to understand the consequences of criminalised behaviours at such a young age. “They don’t have the capacity at that age to reflect on the life-changing potential of a criminal charge or finding of guilt, let alone a conviction for their actions,” she says.

Dr Mick Creati, paediatrician and adolescent physician and senior fellow at the Royal Australasian College of Physicians, says the public needs to consider how little a 10-year-old child actually is.

On average, they weigh about 31 kilograms and are just 138 centimetres tall. For children smaller than 145 centimetres, Creati notes, it is recommended parents use a booster seat in a car.

These children’s brains are likewise undeveloped. “The prefrontal cortex, the bit of the brain that controls executive functions, is not fully developed until much later, age 25,” says Creati.

In many other areas, this immaturity is recognised – a child under 12 cannot travel unaccompanied on aircraft, one under 13 cannot open a Facebook account.

“Research has shown children under 12 are not safe to cross the road alone,” says Creati.

“Children of that age have poorly developed impulse control. They might hop into a stolen car, thus becoming an accessory to a crime, without any understanding of the life-changing consequences.”

He calls for a paradigm shift in the way these young offenders are viewed by the system.

“Behaviours currently considered crimes can better be understood as behaviours one would expect in the context of the typical neurodevelopment of 10- to 13-year-olds,” he argues.

Creati points to a study of the neurodevelopmental and mental health profiles of 99 children in detention in Western Australia, published in the British Medical Journal. Eighty-nine per cent of them had at least one neurodevelopmental impairment – including foetal alcohol spectrum disorder, ADHD, depression, anxiety, learning difficulties, speech and language disorders.

Thus a 10-year-old in detention may, in developmental terms, be much younger.

“And they are traumatised, having backgrounds involving domestic violence or abuse, parents with drug and alcohol problems or mental illness,” adds Dr Creati.

A recent study of 438 children aged 10-13 years in the Victorian youth justice system found one in two had been reported to child protection, one in three was in out-of-home care – most often with relatives other than their parents –and one in four in residential care.

Creati, who was instrumental in getting the Australian Medical Association to throw its weight behind a campaign to raise the age of criminal responsibility to 14, recites a long, thoroughly documented litany of tragedy.

A report done for the Queensland government last year found that among the state’s youth justice system population, 70 per cent of school-age children did not regularly attend and about one-third were not even enrolled. A similar review in Victoria in 2017 found truancy rates of 94 per cent.

“Out of all the kids I saw going through the courts when I was working in the Aboriginal legal services in the NT and Western Australia, none was in school,” says Shahleena Musk.

While the level of offending among the very young starts small, it is apt to snowball into more serious crime, drug and alcohol abuse and other health issues, jail, and worse.

Creati notes that during the first year after their release from jail, young adults under 25 had a six times greater risk of death from injury, drug abuse and suicide than other people of the same age and sex.

The root causes of poor behaviour are manifold.

“There are health factors,” says Joel Clark, advocacy and government relations adviser with Amnesty Australia, which has long campaigned for an increase in the age of criminal responsibility.

“For example, we know that 90 per cent of Indigenous kids in remote areas have one of the more serious ear infections, glue ear or runny ear, and hearing loss. So, kids turn up to the first day of school, unable to hear, and they muck up, get classified as a naughty kid. By year 3, they are suspended; by year 6 they are on that justice pathway.”

This is not a newly identified problem. Almost 25 years ago, the World Health Organisation found the prevalence of chronic otitis media – commonly called glue ear or bulging eardrum – among Indigenous children in Australia was by far the highest in the world. At 46 per cent, it was almost four times the rate of the next affected group, the Inuit of Canada, Greenland and Alaska.

Ninety per cent of children in detention in the Northern Territory have been found to suffer hearing loss.

It is not only the fact of incarceration that is damaging, but also the degrading treatment and dangerous associations accompanying it that exacerbate trauma. This reality was brought to bear more than three years ago when the ABC’s Four Corners reported on the conditions in youth detention in the Northern Territory. The images were powerful – of teenager Dylan Voller, restrained in a chair, head covered in a spit hood. He had been in and out of detention from the age of 11.

The subsequent Royal Commission into the Detention and Protection of Children in the Northern Territory brought to light myriad abuses and travesties of justice. Among the commission’s numerous recommendations was a call for the age of criminal responsibility to be raised to 12. And that, except in the most serious cases, children under 14 should be kept out of detention.

But the failings of the justice system are not limited to the Northern Territory. All states and territories have children under 14 in detention – although Queensland, Western Australia and the NT are the worst. And the damning stories keep coming. Recently another Four Corners investigation focused on children held in Queensland police watch houses, often in proximity to serious adult offenders. One case study highlighted the plight of a girl, 12, the subject of a protection order, held for nine days in the Brisbane watch house.

It is taxpayers who are footing the bill for this policy of detention, and the price is high.

“It costs about $1400 per night per child to hold them in detention,” says Joel Clark. “A NSW parliament inquiry into diversion last year found that the average cost of diversion and prevention is $180 per day per child.”

He points to a May 2017 report by PwC that calculated the cost of Indigenous incarceration broadly in Australia was $7.9 billion in 2016, on track to rise to $9.7 billion by 2020. By 2040, it is predicted to reach almost $19 billion, if changes are not made.

Significantly, PwC found the costs associated with the justice system made up more than half that figure – at $3.9 billion – twice the cost to the community of the actual crimes, which is about $1.6 billion.

“Nearly $20 billion, annually,” says Sharkie. “If we spent just a billion dollars – just one-twentieth of that amount … providing support to families so the kids can stay with them, on addressing healthcare et cetera, because a lot of these kids have chronic health problems and psychological problems…

“This goes to issues much, much broader than just raising the age of criminal responsibility.”

There are signs of hope. Arthur Moses, SC, president of the Law Council of Australia, another organisation lobbying to increase the age to 14, points to one in a speech he made to the National Indigenous Legal Conference in August.

“In 2017-2018 youth detention involved a staggering total government spend of more than $509 million, money the Law Council firmly believes would be better spent on prevention, rehabilitation, diversion and justice reinvestment,” Moses said.

“… It has long been recognised that the key drivers of incarceration for Indigenous people are external to the justice system, and justice reinvestment involves a commitment to invest in front-end strategies to prevent criminalisation.

“… There are success stories we can look to and learn from, such as Bourke’s Maranguka Justice Reinvestment project … [a] community-based diversion that works, addressing the causes of offending before it begins.

“The project began in 2013, when members of the Bourke Indigenous community approached Just Reinvest NSW with an interest in adopting a community-led justice reinvestment approach,” he said.

In four years, Moses said, there had been a “staggering” decrease in crime rates in that community. The number of major offences was down 18 per cent, non-domestic violence assaults down 34 per cent, domestic violence down 39 per cent and drug offences down 39 per cent.

Better results at lower cost. Analysis by another of the big accounting firms, KPMG, in November 2018 estimated a “positive economic impact” of $3.1 million in one year (2017) and found that if just half of the results achieved in 2017 were sustained, Bourke could deliver an additional economic impact of $7 million over the next five years.

Underpinning that success, says Alistair Ferguson, executive director of the Maranguka project, “is our ‘growing our kids up safe, smart, strong strategy’, which goes right back to age zero.

“We’re moving away from punitive measures to more of a wraparound service approach, and to start unpacking the underlying issues and to find more efficient ways to address systematic disadvantage,” he says.

Next month, Australia’s Council of Attorneys-General will meet. On the agenda will be a working paper considering the possibility of raising the age of criminal responsibility.

Rebekha Sharkie is hopeful something positive might happen, that the overwhelming evidence will finally outweigh the politics of being “tough on crime”.

She reflects on the recent view of Scott Morrison in response to 16-year-old Greta Thunberg’s address to the United Nations Climate Action Summit. Our prime minister warned against causing children “needless concern”.

It’s hard to miss the irony in his follow-up statement.

“We’ve got to let kids be kids.”

This article was first published in the print edition of The Saturday Paper on Oct 19, 2019 as "Holding patterns". Subscribe here.

Mike Seccombe
is The Saturday Paper’s national correspondent.