Children aged 10 and 11 in the ACT will no longer be subject to penalties in the territory's criminal justice system under landmark changes agreed this week.
The Legislative Assembly passed laws to raise the age of criminal responsibility to 12, and then to 14, with some exceptions, in 2025.
The staged implementation means the ACT government has time to establish support services for children - and their parents, carers and families - who would otherwise have been dealt with in the courts or imprisoned.
Attorney-General Shane Rattenbury this week said only a handful of children aged 10 and 11 became involved in the criminal justice system each year in the ACT, while about 40 to 50 children aged 12 and 13 were found to have committed crimes annually.
A new therapeutic panel, established as part of the law change, is designed to divert young people away from the justice system to avoid a "cycle of criminality".
Advocates have welcomed the changes in the ACT, but have reserved some criticism for carve outs in the territory's laws that will mean 12- and 13-year-olds will still face criminal punishment if found guilty of serious crimes, including murder and sexual violence offences.
St Vincent de Paul Society national president Mark Gaetani said the society regretted the ACT's exceptions but welcomed the shift overall.
"The ACT's decision should be seen as both compassionate and courageous. Furthermore, it is pragmatic, as jailing children is damaging to the individuals as well as harmful and costly to the broader society," Mr Gaetani said.
Amnesty International called on the ACT government to reconsider the exceptions, and all governments to move the age of criminal responsibility to 14.
"This is in line with our international obligations and with the urgent recommendation of First Nations communities, human rights organisations, and health and legal experts. Children sitting in prison cells cannot wait. We need to get them back home to their families and communities, where they can heal," Amnesty International Australia Indigenous rights campaigner Kacey Teerman said.
Why will the age be raised in two steps?
Families and Community Services Minister Rachel Stephen-Smith said the staggered approach to the laws was due to the fact it was much easier to raise the age to 12 than it was to 14.
"What happens when we increase the age of criminal responsibility first to 12, which is relatively straightforward, but then to 14 which is more complicated. We know that 12- and 13-year-olds are more likely to come into contact with the criminal justice system than 10- and 11-year-olds," Ms Stephen-Smith said.
The minimum age of criminal responsibility will rise to 12 soon after the laws are notified in the ACT, and will rise to 14 on July 1, 2025 with exceptions.
What happens if a child commits a crime?
If a child under the age of criminal responsibility does the wrong thing, they do not get a free pass.
They might be immediately picked up and taken into care by police. If police find children doing the wrong thing, they will be responsible for referring the child to a therapeutic support panel.
The panel, which will be established no later than March next year, will be responsible for overseeing the care and supports provided to the child.
The care will be different depending on what the child is found to have done.
"While the system will make provisions for short periods of secure care under an Intensive Therapeutic Order, this system is not focused on providing periods of secure confinement for young people and does not involve a rigorous assessment of the young person's responsibility for a particular offence," the government has said.
Why are there exceptions for older children?
Exceptions for 12- and 13-year-olds have been the most debated feature of the ACT's legislation, revealing a rift between Labor and the Greens, who govern in coalition.
The Greens' Andrew Braddock said 12- and 13-year-olds were unable to form criminal intent and the exceptions should not apply.
The government's explanatory statement said the "very narrow group" of exceptions were needed "in order to ensure the community remains properly protected from the significant risks that may be posed by young persons who engage in exceptionally serious and intentionally harmful behaviour".
The exceptions cover "exceptionally serious and intentionally violent offences": murder, intentionally inflicting grievous bodily harm, sexual assault in the first degree, and an act of indecency in the first degree.
Very few children in the ACT have been accused of seriously violent crimes. No young people have been convicted of the charges listed as exceptions in the ACT, the government has said previously.
Ms Stephen-Smith has said it is "extraordinarily unlikely" a 12- or 13-year-old will be charged with one of the serious crimes
In the event a child is found to have committed one of the exceptionally serious crimes, the government expects a tailor-made response depending on the individual circumstances.
The legislation foreshadows a possible review of the exceptions in 2030, which, the government has said, "will allow the ongoing need for exceptions to be further considered and tested once the alternative therapeutic system is fully operational and risks can be more accurately assessed".
What has happened in the past?
Under the system as it was before the laws changed, children aged up to 10 found to have committed a crime have been referred to a specific case manager in the Community Services Directorate.
The case manager's job is to ensure the child, along with their parents or carers, receives the support they need to. This can include accommodation support, mental health care and education support.
Many of the children who come into contact with the system are already known to the government's child protection workers.
The new therapeutic management panel will effectively replace the function of the specific case managers, with the government confident case managers can work with children who come into contact with the system between now and the panel's establishment.
Children aged 11 and older have, under the old system, faced criminal charges.
