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ELIZABETH:

From Schwartz Media, I’m Elizabeth Kulas, this is 7am.

Australia is almost alone in the world in its willingness to lock up primary school-aged kids for criminal offences. And the “tough on crime” rhetoric that pervades politics means there’s little will to change that. Mike Seccombe on the push to lift the age of criminal responsibility.

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Archival tape -- Rebekha Sharkie:

“In Australia, the minimum age of criminal responsibility across the commonwealth, state and territory legislation is 10. Our law permits the arrest and detention of a child - a child - in year four, and takes them away, often far away from their family prior to even a finding of guilt.”

ELIZABETH:

Mike, last week, Rebekha Sharkie introduced a bill to the parliament relating to youth crime. What was she calling for in the bill?

MIKE:

Well, Rebekha Sharkie, who's a MP from the Central Alliance, which is a crossbench small party, tabled legislation to increase the minimum age of criminal responsibility from 10 to 14.

ELIZABETH:

Mike Seccombe is The Saturday Paper’s national correspondent.

MIKE:

Australia is one of the few developed nations, indeed one of the few nations in the world, that allows children so young to be prosecuted for crimes as though they were adults.

ELIZABETH:

I feel like I should have known this but find that so shocking. I didn't know that children that young could be found criminally responsible.

MIKE:

I know! It's deeply disturbing. 10 year olds! Across all of Europe and most of Asia, Africa, South America, the median age at which children are deemed to have criminal responsibility is 14. In a lot of Europe it’s 16, in a couple of countries in South America, including Brazil, it's 18.

Archival tape -- Rebekha Sharkie:

“Countries such as China, Russia, Sierra Leone, have a minimum age of 14, while Canada and Scotland are both set at age 12…”

MIKE:

So Australia is very much an outlier in dealing with young children through the criminal justice system. The United Nations Committee on the Rights of the Child advocates 14 at a minimum, and only last month in Geneva, it criticised Australia once again, as it has before, for having failed to revise the age in this country.

Archival tape -- Rebekha Sharkie:

“One of the recommendations was to lift the age of criminal responsibility. Two years on, we have done nothing in this place. It is time for this place to lead the nation. It is time for this place to act…”

MIKE:

That's why Sharkie tabled her legislation. She wants to see it increased in line with most of the world.

ELIZABETH:

I mean, for a second if we just think about what a 10 year old, what being 10 looks like. I mean, these are small children.

MIKE:

They are. I spoke to Dr. Mick Creati, who's a paediatrician and an adolescent physician, and he was making the point that the average 10 year old weighs about 31 kilograms and is 138 centimetres tall. So, you know, they're very small. They're not very developed physically or mentally. In many areas we recognise this fact. A child under 12 cannot travel unaccompanied on an aircraft. A child under 13 cannot open a Facebook account.

Archival tape -- Rebecca Sharkie:

“And this is why we do not let 10 year olds drive cars, drink alcohol, have a Facebook account or indeed vote. We impose these limits because we as a society decided that young children are not capable of making rational decisions...”

ELIZABETH:

And so did Sharkie’s bill receive support?

MIKE:

It received some. She was supported by a handful of her fellow federal parliamentarians. All of them crossbenchers and minor party people. So there was Zali Steggall.

Archival tape -- Zali Steggall:

As a mother of teenagers, like many in this place, I have seen first hand the changes our children go through from starting school to adolescence. It beggars belief that at 10 we’re holding them criminally responsible…”

MIKE:

Helen Haynes, Andrew Wilkie, Jacqui Lambie, all on the crossbench along with the Greens. But there was no public support from either of the major parties, because both the major parties are very alert to the political danger of being seen as, quote, soft on crime, unquote. You will have heard that phrase, you know, bandied about at almost every election.

Sharkie says she's received some private acknowledgement from a number of government and Labor members who think that things need to change. But she fully expects that her build will languish unaddressed in the parliament. But she wanted this on the table in the hope that the federal parliament could start a conversation and that that would flow on to other parliaments. And this is particularly important because these are matters largely for the states. I think there's about one kid in detention on federal matters. Mostly it's state jurisdictions that are putting these kids in detention.

ELIZABETH:

So what do we know about children who are currently locked up in Australia?

MIKE:

Every year, about 600 of these lower primary school age children are locked up. On any given day, there's about 60 of them in custody. Most of them have physical or intellectual disabilities. They've got traumatic personal histories, impoverished backgrounds, parents with domestic violence issues, parents with drug and alcohol problems and mental illness. And that's the case overwhelmingly. Some extraordinarily high percentage of them come from this kind of background.

There's a wealth of evidence to this effect. And the latest addition to that body of evidence came on Tuesday, which was the day after Sharkie tabled her bill with the release of some new data from the Australian Institute of Health and Welfare, which is a government body. And it tracked the incarceration rates of children aged 10 to 14 over four years from July 2014, and cross-matched that with the data on child protection services. They found that just over half of those young people had received child protection services at some time during the study, and that's around 10 times the rate of child protection services in the general population. Aboriginal and Torres Strait Islander children, they make up about 70 per cent of the kids in detention.

ELIZABETH:

And what kind of crimes are they being locked up for? What kind of things are we talking about?

MIKE:

I spoke with Shahleena Musk, a senior lawyer with the Aboriginal and Torres Strait Islander Rights Unit at the Human Rights Centre. And she says that most children of that age group who come before the courts are not coming through for very serious offences. They're coming through for anti-social behavior, damage to property, stealing, unlawful use of a motor vehicle. That sort of thing. And usually they do it in conjunction with other young people. So, you know, it may well be that your 10 year old jumps in the back of a stolen car being driven by an older kid and thereby becomes in the eyes of the law, a criminal.

So just to show how minor some of these things are, she cited a case from her personal experience where three children, who'd been removed to residential, that is state care, and they were in a house and they were mucking up at dinner time and they were spraying tomato sauce and throwing some food around. And the carer there asked them to stop and they wouldn't. So it escalated very quickly.

The carer called the police and said they were damaging property. So the kids then, some of whom had outstanding matters or histories of involvement with the police and were afraid of being arrested, they climbed up on the roof and had to be talked down. And then subsequently they were arrested and two of them were remanded in custody, put behind bars effectively, because of their prior history.

And then the charges got set down for hearing. And Musk and her colleagues wrote to the police and the prosecutors saying, withdraw these charges. This isn't criminal behavior. This is kids being kids. But the charges weren't withdrawn. And the food fight, which I might add made a mess, but actually damaged no property, went to a hearing. And in the end, the magistrate accepted that it was such a trivial matter, it didn't warrant the intervention of the criminal legal process and threw the charges out. But in the meantime, of course, two of those kids had been waiting in detention, on remand, behind bars and then subjected to fairly onerous bail conditions on the basis of a food fight.

ELIZABETH:

And these are primary school age kids.

MIKE:

These are primary school age children. That's right.

ELIZABETH:

We’ll be right back.

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ELIZABETH:

Mike, we’re talking about very young children interacting with the criminal justice system, kids as young as 10 in some cases. What do we know about the effects of going through that system at such a young age? I don't imagine it can be a good thing.

MIKE:

Well, no. There's a large body of evidence showing that this punitive regime is a multifaceted tragedy for the children involved. It damaged their educational and employment prospects into the future, further traumatizes them, and is likely contributing to the rates of suicide, even. So, it's not helping.

In particular, it's significant to note that the rate of recidivism is much higher when kids come into the system younger. The stats show that for kids who are first sentenced to a community based order, that's a good behavior bond or supervised suspended sentence, doesn't actually mean detention necessarily. Ninety per cent of them in the 10 to 12 bracket come back before the courts again within 12 months. When a kid actually gets sentenced to detention, they're back 94 per cent of the time within 12 months. And then when you look at older age groups, the older kids are at their first point of contact with the justice system, the lower the recidivism rate. So, for example, by the time they get to age 15, the recidivism rate is 49 per cent, which is still high, but it's, you know, only half essentially what it is among the young children.

ELIZABETH:

So Mike, if the aim is to prevent future crimes, then it doesn't really work. Why are there such high rates of recidivism in kids?

MIKE:

For one, as Shahleena Musk and others pointed out, children of that age lack the ability to understand the consequences of their actions, so they won't necessarily recognise the sort of life changing potential of a minor criminal act or a finding of guilt or time in jail. The prefrontal cortex, which is the bit of the brain that controls executive functions and particularly impulse control, isn't fully developed until much later. I mean, you're not fully an adult in that regard until about 25. But certainly at the age of 10, your impulse control is very, very poor.

The other aspect, of course is, as Dr Mick Creati points out, that the children in detention are actually, in many cases, much younger than their calendar age because they're more likely to have neurodevelopmental impairments. One survey of children in detention in Western Australia found most of them had a range of disorders, including fetal alcohol spectrum disorder, ADHD, depression, anxiety, learning difficulties, speech and language disorders. So, you know, a 10 year old kid who gets bunged up in detention may, in developmental terms, actually be much younger.

ELIZABETH:

And Mike, aside from the human costs of the system, which of course, is the first priority. But in terms of the financial costs associated with the system, what do we know about that?

MIKE:

Well, it's very expensive. It varies a bit by state, but it costs around fourteen hundred dollars per night, as I understand it, in New South Wales, to hold kids in detention. So it's very, very expensive. All up, youth detention costs us about half a billion dollars a year. A New South Wales parliamentary inquiry into alternative methods of diversion last year found that the average cost of diversion and prevention was about $180 per child per day.

ELIZABETH:

Mike, what is diversion exactly? What does that mean?

MIKE:

Diversion means, I guess, keeping them in the community, strengthening their support networks. But it should mean much more than that, in the view of the experts. It should mean providing wraparound services to address their underlying trauma, their physical and mental issues, their educational problems, et cetera. I mean, something like 90 per cent of Aboriginal kids in remote communities have ear infections that make it hard for them to hear. So, you know, they go off to school, they can't hear what's happening, so they muck up. It would seem that a much better way to go would be to address the problems these kids have, rather than simply taking this sort of tough on crime approach.

ELIZABETH:

And are their examples of where that might be happening?

MIKE:

Yes, there are some. One that I looked at is one up in Bourke called the Marin Buka Justice Reinvestment Project, which is a community based diversion program that works and it addresses the causes of offending before it begins.

Archival tape -- Unidentified Man #1:

“We wanted to have an opportunity to say well, alright, here’s another way to do it. Reinvest that, what we have, back into our community. Reinvest our old people back to our community, reinvest our young men, don’t send them away anymore. Reinvest our children back to us, let us have a go at it.”

MIKE:

It began back in 2013 when members of the Bourke Indigenous community approached Just Reinvest New South Wales seeking funding to adopt a community-led justice approach. So what they do is they sit down with the families. They try and prevent problems before they happen. As one of their people told me, they start essentially “year zero,” offering support to families.

Archival tape -- Unidentified woman #1:

“And ask them what we can do for them - what they need from Bourke. What can we give them that’s gonna keep them out of trouble.”

MIKE:

In the four years this project has been operating in Bourke, there's been a staggering decrease in crime rates in that community. The number of major offences was down 18 per cent. Assaults were down 30 to 40 per cent, drug offences were down by 30 to 40 per cent. And this has resulted in a huge saving to the criminal justice system. I mean, that's, I must add, that it's not just, you know, children aged 10 to 13. That's generally. But that's where it starts. I mean, it starts and it escalates from that very young age.

ELIZABETH:

So what are the hopes for raising the age of criminal responsibility? How likely is that to happen?

MIKE:

Next month, Australia's Council of Attorneys General is going to meet. And on the agenda will be a working paper that was commissioned at its last meeting last November, which is considering the possibility of raising the age of criminal responsibility. We don't know where it's going to go. The suspicion is that possibly they will decide that it should be raised to some extent, but won't set a figure and will, you know, bounce it off to the Law Reform Commission or someone like that to have a further look. But there is some hope that things might begin to change next month.

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MIKE:

Scott Morrison was, you know, saying we can't have our middle class children taking a day off school and being subjected to needless concern about the climate crisis. You know, we've got to let kids be kids, he said. Well, talking to Rebekha Sharkie, we were musing on that a little bit, this ‘let kids be kids’ thing. Well, as she said, we're not letting kids be kids in this circumstance. We're treating them as adults and just locking kids up is not actually going to fix the problem.

ELIZABETH:

Mike, thank you so much.

MIKE:

Thank you very much.

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Elsewhere in the news:

Union boss John Setka has been formally expelled from the Labor party after withdrawing his legal challenge to have the Supreme Court of Victoria prevent his removal. Labor leader Anthony Albanese has said the decision is a “good outcome” for the ALP. Albanese attempted to remove Setka from the party earlier this year due to allegations of domestic violence and his controversial criticism of family violence campaigner Rosie Batty.

And a 20-year-old University of Queensland student, Drew Pavlou, is suing Dr Xu Ji, China’s consul general and an adjunct professor at the University. Pavlou says that Dr Jie accused him of anti-separatist behaviour after he participated in a Hong Kong pro-democracy protest on campus, which later exposed him to death threats. Citing Queensland’s Peace and Good Behaviour Act, Pavlou is seeking to have the comments retracted and to receive an apology.

This is 7am, I’m Elizabeth Kulas. See you Friday.

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