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LCA calls for urgent adoption of ‘game-changing’ recommendation

The Law Council of Australia has urged for the immediate adoption of a key recommendation put forward by the NT Royal Commission report.

user iconEmma Musgrave 21 November 2017 The Bar
Law Council of Australia
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The Royal Commission report uncovered shocking treatment of children within the juvenile justice system and made key recommendations, including a recommendation that the age of criminal responsibility be raised from 10 to 12 and that no child under 14 should be sentenced to detention, “except in the most serious cases”.

LCA president Fiona McLeod SC said that an immediate NT and national response was required, noting that the “game-changing” recommendation needs urgent adoption.

“Children belong in their communities, with their families and support networks. The detention of children should be a last resort and never a first-step,” Ms McLeod said.


“Raising the age of criminal responsibly is a game-changing recommendation that, if adopted, will drastically alter how the criminal justice system views the criminality of some of our youngest children.

“A 10-year-old’s brain is drastically different to that of a teenager’s. The Royal Commission’s recommendation reflects this in the most decisive way.”

Ms McLeod noted that raising the age of criminal responsibility to 12 years of age would further Australia’s commitments to fostering the best interests of the child as signatories of CROC.

“The Law Council has previously recommended raising the age of criminal responsibility to at least 12, which is consistent with the Convention on the Rights of the Child (CROC),” she said.

“However, raising the minimum age of criminal responsibility should not be used to justify the removal of the doctrine of doli incapax which presumes that a child under 14 does not know that his or her conduct is wrong unless proved otherwise.

In addition, Ms McLeod noted that the Royal Commission report further demonstrated “tough on crime” approaches do not work.

She explained that the NT has the “highest rate of children and young people in detention in Australia, with an overwhelmingly disproportionate impact on Aboriginal and Torres Strait Islander children”.

“This is clearly a backwards approach – there must be more funding for the beginning of the cycle, with an emphasis on early intervention, prevention, rehabilitation and community-led diversion programs,” Ms McLeod said.

“As the Royal Commission has indicated, measures that focus on such outcomes are not only essential for the community, but also have the ability to result in considerable financial savings for government.

“This is a historic opportunity to address youth incarceration rate and the raft of social welfare and child protection issues being experienced nationally. This is certainly not just an NT issue,” Ms McLeod said.

The Aboriginal Legal Service (NSW/ACT) Limited also provided a response to the NT Royal Commission’s recommendation which called for a systemic reform of child protection.

“The systemic failings in child protection identified by the commission are not isolated to the Northern Territory,” said ALS CEO Lesley Turner.

“Lack of early support for parents, failure to engage Aboriginal families and communities in decision making and the drift of children from care to crime are all features of the system in NSW.”

Mr Turner noted that across the country, Aboriginal and Torres Strait Islander children are removed from their families at far greater rates than non-Indigenous children.

“In NSW in 2016, Aboriginal and Torres Strait Islander children were over 10 times more likely than non-Indigenous children to be in out-of-home care. These statistics mirror the well-documented overrepresentation of Aboriginal and Torres Strait Islander children in the youth justice system,” he said.

“The commission identifies the need for a fundamental shift in the way child protection is carried out to prevent Aboriginal and Torres Strait Islander young people cycling between care and crime.

“Child protection systems must move away from crisis intervention and towards measures that support family preservation.”

In conclusion, Mr Turner said: “We hope to improve the NSW child protection system so that wherever possible, Aboriginal and Torres Strait Islander children grow up safe and connected to their culture, families and communities.”