News

The age of criminal responsibility is set to rise above 10 in the Northern Territory – a move the new attorney-general hopes the rest of the country will follow to get us closer to UN standards for children’s rights. By Esther Linder.

NT poised to raise age of criminal responsibility

Chansey Paech, the Northern Territory’s new attorney-general.
Chansey Paech, the Northern Territory’s new attorney-general.
Credit: Supplied

Chansey Paech is a publicly optimistic man. Among his first acts as the Northern Territory’s new attorney-general, he has pushed to raise the age of criminal responsibility.

“For me, it was really important coming into the portfolio … just knowing we’re talking about kids. We’re talking about children,” he says. “If ‘tough on crime’ worked, the territory would be the safest place in the country.”

Just six months into the job, Paech is working to shift a draconian stance on youth justice that has put the country well behind international standards for human rights. It’s also a first for a territory that bears the brutal marks of incarceration, intervention and the unfulfilled legacy of a royal commission.

Paech is a genial, warm and charismatic figure. An Eastern Arrernte, Gurindji and Arabana man, Paech is also the first openly queer member of the NT parliament, which he joined in 2016, and the first openly queer Indigenous representative in Australia. He has a broad smile but speaks with intense focus, as if constantly aware of the unstable ground he is treading.

Paech’s reform agenda has so far included repealing mandatory sentencing laws and mandatory non-parole periods for some offences in the territory, as well as updating the 1992 Anti-Discrimination Act to extend the list of attributes that are illegal to discriminate on the basis of, such as sexual orientation, housing status, language and others. It also includes a positive duty to prevent and eliminate discrimination, sexual harassment and victimisation.

But the legislation he introduced to raise the age – which is expected to pass at the end of this month – has been controversial on all sides of politics. It has flared tensions in First Nations communities still bearing the scars of the 2007 intervention and a political class that has so far made public commitments without direct action towards change.

“There are people in the community who will oppose and hate me for doing this because they feel like it should be lower than what it is now,” Paech tells The Saturday Paper. “And then there are people in the community who have waited so long for this reform.”

His personal commitment to the task is clear. The beneficiaries of his efforts to promote alternatives to youth incarceration are overwhelmingly Indigenous. In the NT, Indigenous children make up 43 per cent of the population aged 10-17, but 96 per cent of that age group in detention.

“Becoming the attorney-general and doing my first visitations of the Alice Springs Correctional Centre, and the Darwin Correctional Centre, and the youth detention facilities, was something I had to really… I had to really gear myself up to do,” he says. “Because walking through there and having family yelling at you through the bars, it’s kind of a really hard feeling to describe.”

 

According to the UN Committee on the Rights of the Child, the recommended minimum age of criminal responsibility is 14, based on the cognitive development of a child and their ability to comprehend the impact of their actions.

Our legal system relies on the principle of doli incapax, which assumes children below the age of 14 are “criminally incapable” unless proved otherwise. But the Australian Human Rights Commission in 2020 expressed concern that this principle may not be routinely applied and “is failing to protect” children.

In 2019, the UN committee specifically urged Australia to raise the age, to fulfil its obligations under the UN Convention on the Rights of the Child, as well as the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

It is now five years since the Royal Commission into the Protection and Detention of Children in the Northern Territory handed down its final report, following allegations of abuse at the Don Dale Youth Detention Centre aired by the ABC’s Four Corners. At the time, the territory government led by Michael Gunner accepted the intent and direction of all 227 recommendations by the commissioners – among them, a call for amendments to the NT Criminal Code Act and Youth Justice Act to raise the age of criminal responsibility to 12, with a “qualifying condition” that children under 14 should not be incarcerated except in exceptional circumstances.

But little has been done since to implement these recommendations. In the intervening years, 17 children aged 10 to 11 years were detained either on remand or post-sentencing, according to data provided to The Saturday Paper by the attorney-general’s office. The Don Dale centre is still open, despite multiple allegations of horrifying treatment, malpractice and a lack of therapeutic care for children who are remanded there.

Mick Dodson was one of the two commissioners tasked with the final report given to the government. Asked why 12 was the chosen age and not 14, he tells The Saturday Paper it was the “pragmatic” thing to do.

“You had to be realistic about what you can achieve,” he says. “You’re fighting against governments that don’t care.” He saw a “lack of courage” when it came to youth justice in the territory. “That’s why we all get so cynical about this.”

Dr Hannah McGlade, a Noongar woman and a legal expert on Indigenous human rights at Curtin University in Western Australia, describes the overall approach to the criminalisation of children as “very, very harsh”.

“We have one of the lowest ages of criminalisation in the developed world,” she says. “Unfortunately, Australia is not upholding properly or fully the rights under the convention, and hasn’t signed the optional protocol attached to it.”

Paech’s explanation for why the new legislation doesn’t immediately raise the age to 14 reflects the political pragmatism around the proposal, which is inextricably bound to the workings of the Labor caucus. “This was around us honouring a commitment that we made publicly.”

The initial response to the legislation has been mixed. John Paterson, chief executive of the Aboriginal Medical Services Alliance Northern Territory, the peak medical body for community-based services in the NT, said it was a “first step”. Others, such as Cheryl Axleby, co-chair of advocacy organisation Change the Record, describe the move as “bitterly disappointing” and “another wasted opportunity to do the right thing”.

Still, Paech is cautiously hopeful that the NT’s move will lead the way for other jurisdictions to act similarly, although his conversations with other attorneys-general have not yielded results.

In Western Australia, McGlade notes, recent legislative changes are in fact moving backwards, with indefinite and mandatory detention introduced for some offences. “Mandatory detention laws have been condemned by the UN treaty bodies,” she says, “and our government is simply not paying regard.”

While the ACT plans a bill to raise the age to 12 next year, and has officially supported raising it to 14, a bill introduced this year in the New South Wales parliament by Greens senator David Shoebridge did not pass. A similar proposal in Queensland was defeated. South Australia is said to be “considering” action, while Tasmania announced in July that it would raise the age of detention to 14 but supported a “nationally consistent” approach to the age of criminal responsibility.

Rebekha Sharkie, a federal independent, introduced a bill to the house of representatives in 2019 to amend the age of criminal responsibility for Commonwealth offences to 14. The major parties did not support it.

 

Paech’s legislation has no formal implementation date, but notes that it will begin “by gazette notice” – an administrative process that essentially means he decides when it comes into force. “Absolutely this will be starting next year,” Paech tells The Saturday Paper. “The two-year period is just to lock you into a time frame … We are ready and willing, we’re just working through a few finalising programs.”

Paech is working with Minister for Territory Families Kate Worden to ensure programs are in place to discourage reoffending and are able to handle children diverted from incarceration.

In its responses to a series of questions, Worden’s office did not clarify whether the government was implementing the second part of the royal commission’s recommendation, to ensure that children under 14 are not incarcerated.

According to the time frame, an implementation group will liaise with police to hash out the specifics of what happens when a child under 12 comes into contact with the police, as well as further developing the diversionary programs. The legislation introduced by Chansey Paech, and set to be voted on at the end of this month, will be up for review in 2024, when he says he hopes to move forward with raising the age to 14. However, there is no formal commitment. Nor is there any guarantee he will be there to implement it, given an election is due in the territory by August of that year.

Paech is hopeful his reforms will shift the groundwork in the territory’s long and dark history of incarcerating children, most of them Aboriginal. It is evidently a personal burden to bear.

“The system needs to change,” he says. “We’ve waited 200-and-something years for it. You know, we’re sick of waiting.”

This article was first published in the print edition of The Saturday Paper on November 12, 2022 as "Age of innocents".

This month marks 10 years since the first edition of The Saturday Paper. The paper is as audacious now as it was then: a rejection of conventional wisdom about what makes the news and who will read it.

To celebrate those 10 years - and the issue-defining journalism produced in them - we are offering all new subscribers a two-year digital subscription for the price of one. That's $298 worth of journalism for $109.

Get more of the best journalism in the country - and celebrate the success of a newspaper built on optimism.

Select your digital subscription

Month selector

Use your Google account to create your subscription