July 2023
The Commissioner for Children and Young People Leanne McLean will release her Advice to the Tasmanian Government on the age of criminal responsibility in Tasmania at 11am, Friday, July 14.
Ms McLean said her Advice, if implemented, would better promote and protect the rights and wellbeing of Tasmanian children and young people who exhibit harmful behaviour.
“My strong Advice is that the Tasmanian Government raise Tasmania’s age of criminal responsibility from its current age of just 10 years to at least 14,” Ms McLean said.
“This change would bring Tasmania in line with the international and now national benchmark of 14 years.
“This means children below the raised age of criminal responsibility would no longer be criminalised.
“Instead, the Advice recommends a new non-criminalising response to prevent and respond to children’s harmful behaviour.”
WHAT: Commissioner for Children and Young People Advice to Government
WHERE: Mental Health Council Tasmania, Level 6, 39 Murray St, Hobart
WHEN: 11am, Friday July 14
Ms McLean said her Advice will help ensure the service system, and the legislative mechanisms through which interventions for children and families, including the first response of police, can combine to provide an effective response to the harmful behaviour of children. Our response should help children change their behaviour, rather than setting them on a pathway through the criminal justice system.
“This approach will be more effective than what we have now and will ultimately make communities safer. It also aligns with well-established international human rights standards and principles, and contemporary best practice.
“This Advice, if followed, will ensure the Tasmanian Government meets its obligations under the United Nations Convention on the Rights of the Child.”
Ms McLean said she has made very clear in her public comments that relying on a criminal justice system which is largely designed for adults to deal with the harmful behaviour of children as young as 10 is appalling and ineffective.
“The notion that a 10-year-old can currently be arrested, taken into custody in a prison watch-house, charged with a crime, taken through a court system and ultimately detained is completely out of step with modern community expectations for responses to the harmful behaviour of children. Further, the existing criminalising response is largely ineffective in helping the child change their behaviour.”
Ms McLean said she acknowledges the Government has already committed to raising the age of detention to 14.
“I welcome this commitment, but it doesn’t go far enough.
“By the time a child under 14 is detained, they have usually already had significant interactions with the criminal justice system.
“Changing the age of detention alone, will not solve the problems leading to them coming to the attention of police in the first place.
“Research clearly shows that the earlier a child comes into contact with the justice system, the more likely they are to keep reoffending. We must change our entire response to solve this problem.”
Ms McLean said her Advice proposes a new approach, where an enhanced service system operates effectively to support children to change their behaviour by better understanding and responding to what they and their family need.
“I am also releasing an accompanying paper today, highlighting the voices of young people who have journeyed through Tasmania’s youth justice system. Their views on what has influenced their journeys, and what would have helped them, are compelling.”
Ms McLean said under the model she proposes, Tasmania Police will continue their important role as first responders to incidents.
“However, instead of being the gateway to the criminal justice system, police will become a gateway to a significantly enhanced service system for children below the age of criminal responsibility.
“This would include equipping police with the training and skills needed to effectively respond to children’s needs, and a new embedded youth worker model to help with de-escalation, rapid assessment, and referrals for children exhibiting harmful behaviours. Importantly, this would include police transporting children to a safe space for assessment, rather than taking them to an adult custodial facility, which is currently the case. International and local models already exist to help us design and implement this approach.”
Ms McLean said under the proposed model, victims of harmful behaviour will continue to be supported, as they are now.
“Importantly, children aged below the raised age would still be held accountable for their behaviour through case management and responses which are proportionate to their needs.
“This would include early intervention and diversionary programs, as well as restorative conferencing, family supports and more specialised supports like drug and alcohol programs to help young people change their behaviour.”
Ms McLean said she has recommended a new Response Coordination Service to support and coordinate the new model.
“A wholesale independent review of the entire service system will be required to ensure the service system is fit to respond. This will take time, and so I am proposing a two-year lead in time to implement the new age of criminal responsibility.”
Ms McLean said her Advice recommends a series of relatively small adjustments to existing legislation including the Criminal Code Act 1924, the Youth Justice Act 1997, and the Children, Young Persons and Their Families Act 1997.
“These recommendations are based on the comprehensive independent public advice I sought from the Tasmania Law Reform Institute in its 2022 report on Raising the Minimum Age of Criminal Responsibility – Law Reform Considerations.
“I am also proposing a new approach to governance for the new system, one which includes shared accountability across the areas of government responsible for service delivery for children who exhibit harmful behaviour.
“I am proposing that a new governance board, including at the very minimum the Secretaries of the major departments, share accountability and decision-making for children with very complex needs, and who are exhibiting the most persistent and seriously harmful behaviours.
“I am recommending the small number of children within this cohort be afforded independent individual advocacy throughout their journey.”