The Northern Territory has become the first Australian jurisdiction to raise the minimum age of criminal responsibility above 10 years of age, in a move the National Children's Commissioner has described as a welcome "first step only".
There was applause in parliament late on Tuesday as a bill raising the NT's lower age limit for criminal responsibility from 10 to 12 was passed by a 16-8 majority.
The legislation also specifies that children aged 12 or 13 years old can only be considered criminally responsible for an offence "if the child knows that [their] conduct is wrong".
Attorney-General Chansey Paech said the changes would help break the cycle of youth re-offending in the NT.
"The revolving door to our detention centres stops here, the cycle of youth crime stops here," he said.
"To make our community safer we must adopt smarter solutions that reduce crime … smart solutions that are proven to break the cycle of reoffending, prevent crime, and keep the community safe."
Chief Minister Natasha Fyles said the evidence was "unavoidable" that the earlier a child entered the justice system, the more likely they were to re-offend.
"When you sentence a 10- or 11-year-old to prison, you're not sentencing them to rehabilitation, to a life of better behaviour, to be that upstanding citizen. You are sentencing them to increased behavioural problems, and potentially and most likely, the evidence shows us, a life of criminal activity," she said.
"Primary school-aged kids … are not hardened criminals who need to be locked away."
The bill was also supported by Independent Mulka MLA and Yolngu man Yingiya Guyula, who said its passage was a small step towards changing "racist systems".
However, he said the age should be further raised to 14 – an age he said "corresponds with Yolngu understanding" of greater maturity.
"When our children are becoming more responsible and aware of their actions, it is an age we expect to see them hunting for their families and teaching younger children to hunt and protecting them from harm," he said.
Five years since royal commission recommendation
Raising the minimum age of criminal responsibility to 12 years was one of more than 200 recommendations made by the Royal Commission into the Protection and Detention of Children in the Northern Territory in 2016.
The legislation falls short of the 14-year minimum age recommended by the United Nations; however, the NT Labor government has pledged to review the legislation, with a view to further raising the age to 14, in two years.
Federal, state and territory attorneys-general have been discussing changing the age nationwide since 2018. But so far only the NT and ACT have taken steps.
The new law will also take until the second half of 2023 to come into effect, to give the NT government time to increase or expand available prevention, intervention and diversion programs.
In addition, Mr Paech revealed in parliament overnight that when the laws take effect, all past records of criminal offending by under 12s would be expunged.
Australian Children's Commissioner Anne Hollonds welcomed the change on Tuesday evening, calling it "very welcome as a first step" to improving the NT justice system's treatment of children.
"Hopefully this will mean that now 10 and 11-year-olds in the Northern Territory will get the care and support and therapeutic treatments that they need, if they find themselves in trouble with the police, and that's a really good thing," she said.
"That's what a civilised country should be providing for those very young children."
She said by the Northern Territory becoming the first state or territory to raise the age, she hoped the move would "put a lot of heat on other states and territories" to follow suit.
However, Ms Hollonds said raising the age of criminal responsibility to 12 was a "first step only" that "does not go far enough", and more work would be required to transform the NT criminal justice system's approach to young people.
"On its own, raising the age to 12 will not have a big enough impact. It will depend on what else is done by way of those community-based prevention, early intervention and diversion programs … And, I would add, we need to start working on raising the age to 14," she said.
"Then, we've got a chance at real change."
Northern Territory justice services have also welcomed the changes.
NT Aboriginal Justice Agreement (NTAJA) governance committee co-chairwoman Olga Havnen said the legislation, along with mandatory sentencing reforms passed by parliament last week, showed the territory justice system was "headed in the right direction".
"I applaud the government for acknowledging that the past ways of dealing with this complex challenge haven't worked and for embracing the evidence on smarter justice initiatives that will support our most vulnerable young people and most importantly, make our communities safer," she said.
Critics voice concern for consequences
The move to raise the age has been under fire for weeks from the Northern Territory's Country Liberal Party (CLP) opposition, whose members voted against the bill last night.
It also comes amid a spike in youth crime in many Northern Territory communities, especially Alice Springs, where an extra 40 officers were deployed earlier this month.
Speaking in parliament on Tuesday, Opposition Leader Lia Finocchiaro described it as a "dark day" for the Northern Territory.
"It is a day that represents the rights of the offender above the rights of our community to be safe," she said.
Shadow Minister for Territory Families, Josh Burgoyne, whose electorate of Braitling is in Alice Springs, accused the government of "rushing head-long" into raising the age "at a time when offending by youth has never been so widespread or violent" and "without a plan on how to rehabilitate [them]".
"The impact of this legislation, at least in the short term, will be less consequences not less crime," he said.
Independent Member for Araluen Robyn Lambley, who was also opposed, said the changes meant "child criminals" would be able to commit acts with "no legal consequences" which would reinforce their "criminal and anti-social behaviour".
