RACGP joins call to Raise the Age of criminal responsibility

Anastasia Tsirtsakis

6/12/2021 3:57:34 PM

The college has signed a letter addressed to all Australian governments, outlining significant health reasons for raising the age from 10 to 14.

A young boy’s hands holding onto wire mesh.
Evidence shows that children under 14 may not have the required emotional and mental capacity to be criminally responsible.

As Christmas approaches, for many Australians, playing cricket in the street on a hot summer’s day evokes childhood memories.
But for one young Aboriginal boy, visiting Darwin from a remote town, the memories aren’t so fond.
One afternoon, while going into bat, his ball struck a nearby streetlight causing it to break. A disgruntled neighbour, who witnessed the scene, told the boy to stay put; they were calling the police.
When they arrived, despite there being no ill intent and the boy promising to do all he could to pay for the damage, he was sentenced to two weeks in prison.
That is just one story of incarceration of a minor that Professor Peter O’Mara, a Wiradjuri man and Chair of RACGP Aboriginal and Torres Strait Islander Health, can recall from his time as a medical student in the Northern Territory. Over the years, he has been subject to countless others.
‘That was when mandatory sentencing had been introduced, which was basically a disguised program to target Aboriginal people,’ Professor O’Mara told newsGP.
‘It was just a simple mistake – or the fact that he had a good eye and a good hit – and now this young fella is introduced to a system where he’s surrounded by people who may well be real crooks, and they’re talking to him about all these things that young kids should never hear.
‘This is the kind of stuff that we’ve got to turn around.’
In Australia, the age of criminal responsibility is 10 years old. In 2020 alone, almost 500 children aged 10–13 were imprisoned, of whom at least 65% were Aboriginal and/or Torres Strait Islander.
After the United Nations called on Australia to raise the age, in line with the 2019 UN Committee on the Rights of the Child, the ACT took action in October, becoming the first jurisdiction to raise the age to 14. The move was endorsed by an independent review led by Emeritus Professor Morag McArthur, which supported a complete overhaul of the youth justice system.
Now the RACGP has joined 29 other health and medical organisations to call on governments around Australia to follow the ACT’s lead, arguing that the current minimum age of criminal responsibility is ‘out of step’ with medical consensus with regards to brain development.
A letter, co-signed by the college, states that children under the age of 14 are undergoing ‘significant growth and development’ and, as a result, ‘may not have the required capacity to be criminally responsible’.
Research shows that immaturity can affect a number of areas of cognitive functioning “including impulsivity, reasoning and consequential thinking”,’ the letter states.
Further to that, the letter cites evidence that children in the youth justice system have high rates of neurocognitive impairment, trauma and mental health issues, and that some behaviours often reflect the developmental age of the child, ‘which may be several years below their chronological age’.
‘Judging criminal responsibility on the basis of a chronological age is inappropriate for children who may have a much lower developmental age due to a number of medical and developmental conditions,’ the letter states.
‘The evidence overwhelmingly shows that when children in the very young age bracket of 10–13 years of age are forced through a criminal legal process during their formative developmental phases, they suffer immense harm.’    
Associate Professor Penny Abbott, Chair of RACGP Specific Interests Custodial Health, is a strong advocate of the Raise the Age campaign and says the evidence outlined in the letter clearly demonstrates that society needs to better cater to children’s needs.
‘It’s crazy that, as a society, we would think that children under the age of 14 belong in prison,’ she told newsGP.
‘They can’t actually get the care they need in that kind of environment. So it’s just shocking that internationally we seem like the bad guys on the side of incarcerating children.
‘It’s just surprising to me that Australia accepts that position.’

Professor Peter O’Mara says children as young as 10 are sometimes being imprisoned for a simple mistake that can go on to have long-term consequences for their neurological development. 
While being incarcerated is firmly linked to the social determinants of health, Associate Professor Abbott says it is important to recognise that incarceration itself is a social determinant of health that can alter the path children take in life.
‘It makes your chances of being able to lead a healthy life going forward more difficult,’ she said.
‘So we’re actually pummelling children who have already suffered from so many adverse childhood events to end up in the criminal justice system, and then we put them in there just to put the final nail in the coffin of their ability to lead a productive life.
‘It just doesn’t make any sense at all that you would do something as negative as that.’
Meanwhile, Professor O’Mara has witnessed the overarching impacts of incarceration not only for the individual, but for the family and society as a whole. 
‘One of the things that we do know is that about 80% of suicides for Aboriginal people are associated with loss – loss of a loved one and loss of a family member,’ he said.
‘That doesn’t just mean the passing of someone; it can mean that someone is no longer physically present with you. If my son moves to the other side of the country for a job, that’s high risk for me and for my son.
‘Incarceration is like that, but with very limited access to be able to talk to that person, to see that person, and then there’s all the stress … that goes along with it.’
Following the ACT Government’s move to reduce the age of criminal responsibility, Associate Professor Abbott says it time for the Federal Government to ‘provide leadership and accept the evidence’.
‘There’s a lack of humanity in not ensuring that our young children get appropriate care,’ she said.
‘We should be providing trauma-informed services so they can complete school and transition from primary school to high school. Instead we’re criminalising children aged 10–13, putting them in prison and creating an environment where they experience more trauma and are potentially more likely to learn behaviours that sit them further down the path of recurrent involvement with the criminal justice system.’
Professor O’Mara agrees, and says while raising the age is an ‘essential step’ to Closing the Gap that there also needs to be a cultural solution.
‘Part of the challenges that we’re having with schooling is if you get a label, it’s hard to shake,’ he said. ‘And I know there are some kids who play that role because that’s the expectation of them.
‘But the problem is that when the system takes over, they either suspend someone or expel them, and that’s almost like the system’s washing their hands of someone instead of working around ways to fit them back in and help them study and become a productive member of society.
‘So we need to have our Elders spending time with young people as soon as they start to show some signs that they’re having struggles.’
Associate Professor Abbott praised the RACGP for becoming a signatory of the letter, saying that doctors are in ‘a powerful position’ to be advocates.
‘We can understand all of the reasons from a medical point of view of why these children do not belong in prison based on well-evidenced understandings of brain development and the social determinants of health,’ she said.
‘We also understand how you can create healthier families, children and communities. So I think it really does behove us to speak up as a college and as individuals to help Raise the Age.’
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