Federal and state governments have been accused of suppressing large volumes of expert evidence that supports raising the age of criminal responsibility, and sitting on a crucial report because they “lack the political will to act”.
In 2018, the council of attorneys general (Cag) began investigating potential reforms to raise the minimum age of criminal responsibility to 14, and received roughly 93 submissions from youth, medical and legal organisations – most of which are thought to have been supportive of reform.
Eighty-eight of the 93 submissions were tagged non-confidential, meaning organisations have given governments clearance to make them public.
But none of the submissions has ever been released publicly by the Cag, despite multiple attempts – including through freedom of information and questions in the Senate – to force them to.
In October last year, 52 organisations associated with the Raise the Age campaign wrote a joint letter to the Cag chair and the working group urging it to make the submissions public. Their request was ignored, though a small number of submissions have since been voluntarily published by their authors.
“Dozens and dozens of submissions made by legal, health and youth experts have been hidden and ignored by attorneys general for over a year, as they have sat and done nothing while our children languish in prisons,” Change the Record co-chair Cheryl Axleby said.
The Cag has also sat on its draft report, completed in mid-2020, for almost 12 months.
In March, a copy of Cag’s report was leaked to media. It is said to recommend that the age of criminal responsibility be raised to 12 years old, and the minimum age of detention be set at 14, with exceptions for serious crimes.
Despite the leak, the report has not been made public and is understood to be facing strong opposition from key states including Queensland and New South Wales.
Western Australia’s attorney general, John Quigley, told Guardian Australia in April: “There’s some states who object to the release of that report. I’ve urged for its release to inform the public debate. I noticed that one jurisdiction must have leaked it to the Australian.
“The conclusions of the report are on the front page of the Australian, but regrettably all of the weighting information from the medicos and the police – everybody that supports reforms – is still hidden from the public, and I believe that is regrettable, very regrettable.”
In October last year the Human Rights Law Centre sought access to the submissions and Cag’s report under freedom of information (FOI) laws but was refused on the basis that they could damage relations between the commonwealth and state governments and may contain information communicated in confidence by the states.
In rejecting the FOI request, the federal attorney general’s department argued the release of the submissions could impede the “free and frank exchange of views in the workings of the council and its committees”.
Human Rights Law Centre’s legal director, Meena Singh, condemned the inaction from the attorneys general.
“It beggars belief that the chief law officers in the country could be so complacent when it comes to raising the minimum age of criminal responsibility in Australia, which is totally out of step with international human rights law and international standards,” Singh said.
In an unusual move, 42 organisations have now published their own submissions. All of them call for the minimum age to be raised from 10 to 14. More than 90% refer to Australia’s current minimum age of criminal responsibility – age 10 in all states and territories – as breaching international human rights laws and standards. Ninety-six per cent say the current laws are contributing to the over-representation of Aboriginal and Torres Strait Islander children in prison.
On an average night in 2020, there were 798 young people in detention in Australia, almost half of them (48%) Aboriginal or Torres Strait Islander. This is despite Aboriginal and Islander children being just 6% of all 10- to 17-year-olds in Australia, making Aboriginal and Islander children and young people 17 times as likely as young non-Indigenous Australians to be in detention.
Sixty-four per cent of those young people were unsentenced. Of all 10-year-olds incarcerated, 80% were Aboriginal children.
The younger a child is the first time they’re sentenced, the more likely they are to reoffend violently, to continue offending and to end up in an adult prison before their 22nd birthday. According to a 2016 report by the sentencing advisory council, 94% of children in detention aged 10 to 12 returned to prison before they were 18.
The publication of the submissions comes after months of justice groups lobbying governments to release the report and its findings.
In November 2018 the Cag established a working group on the minimum age of criminal responsibility and said it would report within 12 months. Just over a year later, the council called for the submissions on whether to raise the age and for alternatives to imprisonment.
When the Cag met again last July, it decided that further work was needed “on adequate processes and services for children who exhibit offending behaviour” and postponed any decisions on legislative reform.
South Australia’s attorney general, Vickie Chapman, said at the time: “There is a significant risk that a simple increase to the minimum age of criminal responsibility would leave this cohort of children without proper support services.”
In March, the renamed Meeting of Attorneys General agreed the issue would be further considered out-of-session.
“The evidence is clear: 10-year-old children belong with their families, not in prison cells,” Axleby said.
“I can only assume that state and territory attorneys general have refused to publish these submissions because they lack the political courage to act.”