Well, I thought the Victorian government reneging on its commitment to increase the minimum age of criminal responsibility to 14 was the low point. But I didn’t reckon with just how far down the Coalition parties were prepared to go.
Enter the new Country Liberal Party government of the Northern Territory and incoming Chief Minister Lia Finocchiaro, who has made the post-election promise to take the NT’s minimum age of criminal responsibility down to 10. Evidence-based this is decidedly not; the age was only increased from 10 to 12 in August 2023, and youth crime statistics have not seen a spike in that year.
The symbiotic relationship between the public’s fear of crime (universally overestimated), political opportunism/populism, and the media’s eternal love for blood-soaked reportage makes it impossible to determine cause and effect. We all have a responsibility to not irrationally overreact, but lawmakers carry this most seriously. In the Peter Dutton era, however, all bets are off.
As I’ve explained previously, all the evidence points the other way, and the international trend is up, not down. In her recently released report “Help way earlier!”, national children’s commissioner Anne Hollonds formally recommended all jurisdictions increase the minimum age of criminal responsibility to 14. Hollonds’ report is full of killer lines: “We cannot ‘police’ our way out of this problem”, she writes, “and the evidence shows that locking up children does not make the community safer.”
The impulse to punish children is primitive (or, to be charitable, medieval). It’s unfortunate we haven’t evolved past it. However, in the specific context of Australia, and very particularly the Northern Territory, there’s another, darker aspect to it: race.
The law, we flatter ourselves to pretend, is blind. It sees nothing but the act and (if relevant) the actor’s motivation; it notices nothing else about them. This conceit plays into the hands of conservative thinkers, comfortable in their armchair philosophies of merit and consequences.
This mindset may be applied to any conditions. In the Northern Territory, where there is a real problem with youth crime, the answer (punishment) presupposes the reason: antisocial behaviour by antisocial individuals, whoever they and whatever their life circumstances may be.
However, that tedious thing — evidence — tells us that the practical application of law, especially criminal law enforcement, is always contextual and never neutral.
There is overwhelming evidence, recently acknowledged by the NT’s own police commissioner, of the deeply embedded racism in the territory’s police force. In the special demographic circumstances of the NT — the only jurisdiction in Australia where the Indigenous population wasn’t wiped out completely or reduced to a tiny minority by dispossession, disease and mass murder — the relationship between Indigenous peoples and the police is characterised mostly by mutual mistrust and some naked hatred.
More profound still are the bare statistics of the NT criminal justice system. The national position, according to Hollonds, is that Indigenous children are 28 times more likely to spend a night in detention than non-Indigenous children. In the NT, the corresponding statistic is meaningless, because at any point in time the proportion of children in detention who are Indigenous will be at or near to 100%.
It isn’t necessary to argue that police are racially profiling and targeting Indigenous kids disproportionately. The fact on the ground is that, for whatever reason, any change to criminal law is going to almost exclusively impact the Indigenous population.
Specifically, if the age of criminal responsibility is taken down to 10, then all (with a negligible margin of error) of the extra individual children who will be arrested, incarcerated and institutionalised will be Indigenous.
You can look at this two ways. You can take the Country Liberal Party worldview — who cares what colour they are, crimes are crimes — and draw implicit conclusions about why things are that way. Or you can detect a theme, stretching back to the 1870s when white colonisation of Central Australia began in earnest.
What I’m talking about is structural racism, defined by the American Medical Association as “the totality of ways in which societies foster racial discrimination through mutually reinforcing systems”.
Unless you subscribe to the formerly popular view that there is something wrong with Aboriginal peoples, it’s not too much an intellectual stretch to see how intergenerational disadvantage, the root cause of which is racism, is directly connected to the continuing and entrenched terrible outcomes that Indigenous peopels endure.
Criminal justice is just one of the systems that perpetuate the cycle, in sync with others including health, education and the eradication of traditional culture and social structures. In this frame, the Country Liberal Party’s announced policy is not just medieval; it is self-evidently racist. By design and, for absolutely sure, in effect.
