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Aboriginal Legal Service and other advocates slam ACT government's delay on age of responsibility reform

Dechlan Brennan -

The ACT government has been criticised by Indigenous, legal and human rights organisations for not immediately raising the age of criminal responsibility to 14.

The Justice (Age of Criminal Responsibility) Legislation Amendment Bill 2023 introduced into the ACT legislative Assembly this week will raise the minimum age of criminal responsibility to 12 years immediately, and then to 14 years by 1 July 2025.

NSW/ACT Aboriginal Legal Service chief executive Karly Warner said the delay in raising in the age is "failing Aboriginal children".

"We have abundant evidence that locking up children causes ongoing harm for them and their families, and the whole community," she said.

"The ACT government is well aware of this evidence. Politicians have no excuse to sacrifice 12 and 13-year-old children for political expediency."

"The ACT imprisons Aboriginal children at 12 times the rate of non-Indigenous children. It's Aboriginal kids and families who will be most harmed by the government's refusal to fully accept the evidence about what works."

The bill, even with the age ultimately raised to 14, will include caveats. The ACT government has flagged that children accused of serious offences will be subjected to police investigations.

In previous instances, evidence shows that this has included children being strip searched, as well as court appearances and time spent incarcerated; both of which has traumatic impacts on children.

ACT Attorney-General Shane Rattenbury said the bill will "…include a schedule of four exceptionally serious offences that will maintain a minimum age of criminal responsibility of 12 years when the age is further raised to 14 years, with the aim of ensuring harmful behaviour of this nature is appropriately addressed".

Mr Rattenbury said the legislation "recognises and maintains the rights of victims of harmful behaviour by protecting victims' interests".

Assistant Minister for Families and Community Services Emma Davidson said the decision will ultimately benefit children entering the criminal justice system.

"Incarcerating children is counterproductive to rehabilitation. By intervening early and diverting children and young people onto a healthier pathway, we can prioritise both the wellbeing of at-risk children and community safety," she said.

The ACT Council of Social Service welcomed the move by the government, but criticised both the delay, and the caveats the current bill will keep in place.

Interim ACTCOSS CEO Gemma Killen noted that the 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 re-offending.

"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," she said.

The Co-Chair of Change the Record - a First Nations-led coalition of legal, health and family violence prevention experts - Cheryl Axleby said whilst the commitment to raise the age is ultimately a promising step, it is "disappointing that yet again our little children must wait".

"Governments have the capability of acting now and raising the age to 14 now and adding exceptions for certain offences is deeply worrying. The ACT's commitment to only raise the age to 12 now is too little, too late and risks exposing more children to the vicious cycle of the criminal legal system," she said.

"These children should be finishing primary school and starting high school. They should be with their families, not locked up behind bars."

Human Rights Law Centre acting Managing Lawyer Amala Ramarathinam said the delay is a "betrayal" of ACT children.

"[Chief Minister] Andrew Barr's staged approach does nothing for the children growing up in prisons right now who need therapeutic support," Ms Ramarathinam said.

"Continuing to lock up 12- and 13-year-old children and raising the age with exceptions goes against all of medical evidence and expert advice from Aboriginal, legal and human rights organisations as well as the UN."

Last month a cohort of 126 Aboriginal and Torres Strait Islander, health and medical, legal, social and community services providers, and their respective peak bodies, from throughout the country, signed a letter to the nation's respective attorney-generals, arguing for an immediate raise in the age to 14 – without exceptions.

They argued this was backed by medical evidence and internationally accepted standards, as well as highlighting that the United Nations Committee Against Torture had recently also recommended Australia align itself in accordance with international standards.

As an election promise in 2020, the ACT Labor government broke ranks with its federal counterparts and promised to raise the age to 14 if elected. The next election will be in 2024, meaning the age of criminal responsibility will be at 12 at the end of the parliamentary term.

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