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07 July 2022

Why raising the age makes sense

By Legal Services CEO Gabrielle Canny

It’s not rocket science: kids under 14 simply don’t have the maturity to be held criminally responsible for their actions and should not be locked up in detention.

That fact is widely recognised by peak bodies representing doctors, psychologists and lawyers – and it will be a positive step if it is enshrined in law in this state.

A private member’s bill has this week been introduced into the SA Parliament to raise the age of criminal responsibility from 10 to 14. In addition, new Attorney-General Kyam Maher has recently told Parliament he too is looking at this issue and at similar changes made in other Australian states. Whatever their party affiliations, parliamentarians of any persuasion are to be applauded for re-assessing the suitability of SA’s current laws regarding the detention of children. 

In SA at the present time, children aged between 10 and 14 can be charged with a criminal offence. While there is a legal presumption that they are not old enough to form an intention to carry out a criminal act, that presumption can be overturned for serious crimes. In those situations, SA courts are jailing children under 14. This has far-reaching and deeply detrimental consequences for highly vulnerable kids and the wider community. These children invariably come from backgrounds of trauma, violence and disadvantage; they are among the children in our community who need the most support, the most care. When they interact with the criminal justice system, however, it is often a highly harmful experience. All too often, it leads to re-offending and ongoing engagement with criminal courts.

It is estimated that across Australia each year about 600 children aged 14 and under are jailed. Large numbers of them are Aboriginal children from highly disadvantaged backgrounds. The Productivity Commission has found that the current minimum age of criminal responsibility contributes significantly to the number of Aboriginal children being involved in the youth justice system.

It is important for SA to keep pace with legislative reform in other parts of Australia and in other liberal democratic nations. A number of Australian states and territories are looking at their laws relating to youth detention and the age of criminal responsibility. On the global stage, the UN Committee on the Rights of the Child has stated that the age of criminal responsibility should be at least 14. Many members of the  international community have already moved to raise the age - and that age is at least 14 in scores of countries including those whose justice systems are comparable to ours.

The United Nations committee reflects a truth that will come as no surprise to most parents. A child’s cognitive functioning - particularly as it relates to impulsivity, reasoning and consequential thinking - is still developing during adolescence. This means that children under 14 are more likely to act on impulse and emotion rather than engage in reasoned decision making.

Children who break the law must be called to account. But jailing kids under 14 is not an appropriate or effective response for those individuals or the wider community. Early intervention measures - that address the reasons why a young child has committed an offence and that divert the child away from the criminal justice system - lead to better outcomes for children and significant cost savings for the community.