The Victorian government will officially raise the age of criminal responsibility to 12 - with no exceptions - whilst also closing "loopholes" it says allows adults to get children to commit crimes on their behalf and introducing "stronger consequences" for "serious, high-risk and repeat" youth offenders.
On Tuesday, the government announced a series of measures, as part of a standalone Youth Justice Bill, which will see 10 and 11-year-olds no longer able to be arrested, charged, or detained.
The new bill falls short of raising the age of criminal consent to 14, called for by Indigenous organisations and human rights groups and in line with medical expert advice and international standards for child development.
Youth Justice Minister, Enver Erdogan said the government has a long-held position to raise the age to 14 - currently slated for 2027 - "subject to an alternative service model" being created but notes this change would require a separate bill.
Victoria has the lowest rate for juvenile detention in the country, at a rate of 5.7 per 10,000 children aged 10-17. However, as is the case across Australia, Aboriginal and Torres Strait Islander children are grossly overrepresented in youth detention, at a rate of 51 per 10,000 children — 10.6 times more than their non-Indigenous counterparts.
Last year, the Yoorrook Justice Commission called for no child under 16-years-of-age to be incarcerated, contrasting with the Victorian Police Commissioner, who last year argued for an increase in police powers to enable officers to arrest offenders aged between 10 and 13.
The government has said the new bill will create a legislated scheme for warnings, cautions and early diversion, allowing police to have more tools to deal with anti-social behaviour before it escalates and "becomes a risk to community safety and ends up in court".
Aboriginal groups have long argued interaction with police at an early age has negative connotations for Indigenous youth.
However, the government argues these diversionary tactics have helped reduce the number of Aboriginal children going to court in NSW by 50 per cent since the caution was legislated three years ago, and note it is part of self-determination.
"Police will be able to work closely with Aboriginal communities in administering cautions by considering culturally appropriate locations for issuing the caution or asking an Elder or respected community member to administer it," a statement said.
Police will also be given powers to ensure children aged 10 and 11 - who are at risk to themselves or others - can be transported "somewhere safe and to someone who can take care of them".
Attorney General Jaclyn Symes said there will still be occasions where police interact with 10- and 11-year-olds they are concerned about.
"We want to ensure that we have the legislative framework to enable them to act in their best interest and to reduce the risk of them hurting themselves or indeed hurting another person," Symes told reporters.
"There will not be the right of arrest because there will not be the ability to charge a child with a crime who is 10 and 11. They'll be able to interact with that young person, ask their name, 'Where's your mom? Where's your dad?'"
However, she said police would still have "limited force" to compel young people.
"I.e., take the child by the arm etcetera, support the child into a vehicle in order to protect them [and] protect the community, to bring them back and make sure that the right services can be provided," Symes said.
The government will also codify the long-held presumption of doli incapax - a principle of youth justice that argues a child under 14 must understand that their actions are 'seriously wrong' rather than merely 'naughty or mischievous' - into law.
It has previously been criticises for being applied inconsistently across Victoria, with the government arguing this change will ensure the principle is better understood and applied consistently in the courts.
If the bill passes, Victoria will become the first state to introduce the overarching changes; the NT has raised the age to 12 but with carve-outs. The ACT has committed to raising the age of criminal responsibility to 14 by 2026, whilst Tasmania has said it will not allow anyone under 14 to be incarcerated but will leave the age of criminal responsibility at 10.
The Attorney-General said the government would seek for the change to take effect next year, despite previously flagging a start date of late-2024.
The Victorian Aboriginal Legal Service were contacted by National Indigenous Times for comment.