Minimum Age of Criminal Responsibility – alternative diversion model
Mar 2024
Written by Simone Deegan Belinda Lorek
The focus of this submission
The Australian Childhood Foundation and Centre for Excellence in Therapeutic Care (CETC) are dedicated to upholding the rights of children and helping them to heal from trauma. This is joint submission with the Centre for Social Impact at Flinders University. We present this submission to underscore the significant challenges that children and young people in contact with the youth justice system face, particularly those who are also involved in the out-of-home care system and those under the age of 12.
In South Australia, the current criminal age of responsibility is 10 years of age. Ten is the age that the United Nations deems as ‘unacceptable’ and well below the UN’s absolute minimum (UN, CRC 2007, para 32).
This submission addresses the question of whether the minimum age of criminal responsibility (MACR) in South Australia should be increased from 10 years old to a minimum of 12 years. This submission also addresses the proposed alternative model to respond to the behaviours of 10- and 11-year-olds that are assessed as harmful, posing risk to the child’s safety, the safety of others, or the community. An overview of the key points raised within our submission are outlined within the summary of recommendations. Our responses to the questions, and other relevant material, are set out below.
Recommendations
- The minimum age of criminal responsibility must be raised to at least 14 years, with no exception.
- Any diversionary model must commence at 14 years.
- Diversionary models should not contain plans that lead to mandatory treatment or a later potential prosecution.
- An evaluation of the existing reforms in South Australia should be undertaken, to inform future planning.
- Any diversionary model should be developed from inception with input from mental health stakeholders, child protection, trauma specialists and Aboriginal Community Controlled
- Organisations. This will also allow integration into the systems that wholistically protect and support the child and family.
- Based on the connection between residential care and the pathway into youth justice, protocols must be developed to reduce the criminalisation of young people in out-of-home care and their over-representation.
- Diversionary models need to have the capacity to address the unique needs of young people in out-of-home care and explored and designed with experts in childhood trauma.
- The secure and safe keeping proposal (see Level 3: Mandatory action plan) needs to be separated from the current submission process, and key stakeholders engaged in a considered and timely way.
