July 29, 2020

Issues and policies

In the wrong

By Russell Marks
In the wrong
A primary school–aged child in court surely represents the ultimate failure of society, yet Australia won’t raise the age of criminal responsibility

Once, I stabbed a child. With a pencil, albeit a recently sharpened one. On his hand, which was resting on a benchtop in our fifth-grade public-school classroom in Adelaide’s western suburbs. I was a few months older than him and was about to turn 11. In a moment of mad rage, I brought my own fist down on top of his. I can still clearly recall consciously choosing not to think about the probability that the sharpened end of the pencil was sticking out beyond the limit of my hand as I thumped it down, hard, onto his. I was momentarily sociopathic. I drove half a centimetre of the pencil’s end into the back of his hand. It was immensely satisfying, for an instant. He gave a yelp of what must have been significant pain. I was immediately apologetic. But I also wanted him to stay quiet about it, because I didn’t want to get into trouble. I offered him a bandaid.

If I envisioned at all the authorities from whose “trouble” I was desperate to save myself, as I hissed urgent sorries between pathetic pleas for forgiveness, I would have thought about my teacher and my parents, and maybe his parents and the principal. I never once considered police or the courts. But according to the Criminal Law Consolidation Act of South Australia at the time, what I did was in fact a crime: an “assault occasioning actual bodily harm”, aggravated by the fact that the victim was not yet 12 years old. Being a child myself I wouldn’t face the eight years’ prison that adults would. But, being older than 10, I could in theory have been sentenced to “detention” for up to two years. Detention, of course, was just about the most feared of all consequences among my classmates and me. But what we knew of it – an extra half-hour in the company of the deputy principal – bore no relationship to its meaning in legislation.

Of course, nobody ever considered charging me, the Anglo son of a teacher and a public servant who owned the house we lived in. My victim never even dobbed. Others aren’t so lucky. Two decades after I briefly got stabby, I regularly represented 10-, 11- and 12-year-old children who’d been charged with “assault of a worker” and “property damage”, the “worker” being a residential-care employee and the “property” being a window or door or cupboard or chair in a residential-care house. “Resi” is where kids get sent when their parents (at least according to courts and child-protection departments) can’t look after them, and when nobody else will either. In other words, these are children for whom total abandonment is no longer fear; it’s reality. When broken kids act out their emotional dysregulation at the “home” they’re made to live at, we make reports and we file criminal charges. This is despite what we know, from investigation upon investigation in every jurisdiction, of the terror kids too often endure in “resi”.

That the criminal law applies to everyone equally is a conceit because, whatever else it is, the criminal law has always been a weapon wielded by the hegemonic classes against those whose behaviours and attitudes mark them as “out of control”. Criminal law is necessary, sometimes. But against 10-year-old kids?

Class and race are the only lenses through which, when I was working as a criminal lawyer, I could make sense of the keenness with which schools and child “protection” officers and youth “justice” workers and police laid charges against certain primary school–aged kids. Those agents of the state would often tell me how they’d tried “everything” before charging them. But why couldn’t they simply keep trying? A child in court surely represents the ultimate failure of those institutions, and of society. Despite our legislated commitment to each child’s “best interests” we turn our collective failures back onto the child. We punish and blame where we should nurture.


William Blackstone, in his Commentaries on the Laws of England, gives examples of children as young as eight being sentenced to death. English common law traditionally set the “age of discretion” at seven, the same age at which consent could be given to marry in many parts of Europe until the late 17th century. But where the “age of consent” has since been brought up to 16, in Australia we’ve only lifted criminal responsibility to 10.

This, despite the giant strides that science has made since the mid 20th century in understanding how children and their brains develop. Admonishing a well-adjusted child for poor behaviour can produce beneficial results. But punishing a child for acting out of emotional or existential pain is to heap trauma on trauma, and it produces the opposite effect. Working with such children is difficult, and those doing it must somehow avoid reacting and escalating the situation. Yet that is precisely what a criminal charge does. It’s confirmation, for the child, that the system works against them. If going to court is stigmatising for adults, imagine how it affects a child’s developing sense of self.

The worst possible outcome, surely, is that children see themselves as “bad”. But this is an outcome we’re apparently committed to. Brisbane’s Courier-Mail ran a concerted campaign in early 2014 against what it called “pint-sized criminals”, who were apparently staging a “large-scale crime wave”. The paper ran this angle on the basis that the number of children going to court in the previous year had skyrocketed – a simple consequence of Campbell Newman’s government directing police to charge instead of caution. Jenny Mikakos – the health minister now answering for Victoria’s decision to use untrained private security workers to staff its hotel quarantine – described detained children as “the worst of the worst” when she was the minister responsible for their care.

The United Nations now regularly criticises nations that criminalise children under 12. For some years now there has been a concerted campaign, in Australia, to “raise the age” to 14. Aboriginal organisations are behind it. Lawyers are behind it. Doctors are behind it. Even the traditionally conservative Australian Medical Association is behind it. But governments haven’t acted, presumably because there are still more votes in punishment than reform. For years, whenever the matter has arisen, ministers around the country have been saying there must be more work done to identify alternatives. By the end of 2019, the campaign had reached such heights that COAG’s Council of Attorneys-General established a working group on the issue. This week it gave the same response governments always give. There is a need for “further work” regarding “the need for adequate processes and services for children who exhibit offending behaviour”.

This is a cop-out, of course, but also an admission: that governments have continually failed to investigate and invest in adequate processes and services. COAG pushed the matter back to next year, by which time COAG itself won’t exist. Peter Conran, a retired public servant and former Howard government adviser, is leading a review into the former COAG councils “to rationalise and reset” their work. Scott Morrison expects that many of them will “no longer be required” under COAG’s replacement, the National Federation Reform Council, whose main mission is jobs creation.

Somehow, governments have convinced themselves that the status quo is basically okay until a better solution can be identified. But the current system is built around a pipeline from child “protection” to youth “justice”. Struggling families aren’t supported; their kids are ripped away for their protection; those kids are then abused and assaulted in “care” and sent to court when they express their rage and despair. It’s a cruel and nonsensical system that burns out dedicated staff and rewards punitive responses. These children who survive “resi”, as they age, become the fodder for youth detention and then prison networks. The system needs urgent rebuilding around principles of care, love and compassion. Raising the age of criminal responsibility to 14 alone won’t do that. But it will force governments to begin the task.

Russell Marks

Russell Marks is a criminal defence lawyer and an adjunct research fellow at La Trobe University, where he completed a PhD in Australian political history. His most recent book is Black Lives, White Law: Locked Up and Locked Out in Australia. He lives on Kaurna land.

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