CW: This piece contains mentions of forced child removals and police brutality.
If you pick up a newspaper on any stand in Queensland and flip through its pages, you will see bold, fear mongering headlines warning of a ‘youth crime epidemic’. The children that are the subjects of these stories are not afforded the empathy that is usually afforded to most children. Instead, these children, many of whom come from severely disadvantaged communities, are depicted as delinquent monsters deserving of harsh punishments for threatening social cohesion.
Conservatives claim to care deeply about children and their welfare. “What about the children?” they cry, as they spew homophobic opposition to drag queens reading story books in public libraries, transphobic opposition to gender affirming healthcare, and religious opposition to sex education being taught in schools.
This outrage is clearly manufactured. These are the same conservatives that are hellbent on sending children to prison.
Prison is the kind of place you would think vocal proponents of child welfare would be so disgusted by they would call for its abolition. It is cruel and unusual to rip children away from their communities and support networks. It is flagrantly dehumanising to lock children up behind bars.
In my home state of Queensland (and the majority of Australian states and territories), incarcerated children as young as ten are held in separation rooms with no toilets or running water, subjected to strip searches, beaten by guards, strapped into restraint chairs and hooded. In 2020, prison guards at the Don Dale Youth Detention Centre were lambasted by the High Court for tear gassing incarcerated Indigenous children.
It’s confusing then, given the political capital to be found in the optics of ‘child protection’, that conservatives vehemently oppose raising the age of criminal responsibility. If children are so easily impressionable and such malleable products of their surroundings, why is it simultaneously justifiable to hold them criminally responsible and send them to jail?
To answer this question, we need to talk about the explicitly racialised nature of youth crime in this country. First Nations children are hugely overrepresented in youth detention, with incarceration rates of Indigenous 10-17 year olds ranging from 3.5 times that of non-Indigenous children in Tasmania to 28 times that of non-Indigenous children in Queensland.
It’s no secret that a foundational pillar of conservatism is racism. The history to which conservatives so desire to return is that of an English penal colony, founded on genocide and sustained by child removal. The status quo they wish to conserve is marred by the violence of colonisation that the prison industrial complex reproduces.
First Nations children are not afforded the luxury of childhood in the way non-Indigenous children are. Child removals persist even after the formal end to the Stolen Generation. Some states are removing children from their families at greater rates than that of the Stolen Generation.
In addition to this, cyclical poverty and other criminogenic social conditions manufactured along lines of race and class which perpetuate settler-colonial structures mean that Indigenous children are more likely to come into contact with the criminal ‘justice’ system.
This is where the age of criminal responsibility becomes both a reflection of the racist double standard to which First Nations children are subjected by colonial institutions, and a tool used to perpetrate further violence via incarceration.
Firstly, on the double standard. Responsibility is a key concept in criminal law. If a person is not responsible for their actions that would otherwise be a crime, then it is unjust to punish them as if they were criminally responsible.
When it comes to children, criminal responsibility is a hotly contested topic. There are frequent arguments between proponents and opponents of raising the age of criminal responsibility over whether children are truly ‘responsible’ for their actions in a way that can justify a finding of criminal guilt.
Opponents of raising the age will point to the fact that most children can intuitively tell ‘right’ from ‘wrong’, giving examples such as children acting sheepishly and trying to hide from their parents when they are mean to their siblings.
There are two problems with this claim, even before we get to its racist implications. The first is that it’s at tension with the other beliefs held by the conservatives who want to send children to prison. Children evidently do not possess the same rational faculties as adults — a ten year old child does not see the world in a comparable way to a twenty year old adult.
More importantly, crime is socially constructed and does not exist in a vacuum. At the most basic level, crimes are created by acts of parliament. They are not natural or universal moral truths, rather they reflect the moral sensibilities of the dominant groups and institutions of a society.
Criminal behaviour is also socially coerced. Colonisation and state failure to distribute wealth and opportunity equitably create poverty, which coerces crimes of necessity. Dispossession and the forced breakdown of First Nations families and communities isolates children and coerces what the colony criminalises as anti-social behaviour. It seems an inaccurate distillation of what we commonly understand responsibility to mean to say that children can be responsible for criminogenic social conditions over which they have no semblance of control.
There is some recognition of this fact for children aged 10-13. The presumption of doli incapax, Latin for “incapable of evil”, forces the state to first prove beyond reasonable doubt a child knew that their conduct was wrong before a finding of criminal guilt can be made.
However, the application of this presumption is further evidence of the racialised double standards in the treatment of First Nations children by carceral institutions. Over 70% of children aged 10-13 in prison are Indigenous.
Juries, tasked with deciding matters of fact in criminal trials, do not make their decisions in vacuums. The people who sit on juries are overwhelmingly white due to biases in the jury selection process and requirements that exclude large portions of disenfranchised groups. Jurors have also been socialised in a settler-colonial society that vilifies and adultifies Indigenous children. All of this means that juries are more likely to find that a BIPOC child has caused harm in a way that warrants criminal culpability than a white child.
This racist over-assignment of criminal responsibility to First Nations children perpetuates cycles of colonial violence and is modern day child removal. Incarceration is antithetical to any rehabilitation the state may try to claim takes place in these institutions. Even the former director-general of Queensland Corrective Services had condemned the “tough on crime” approach taken by state governments across the country, calling for the phasing out of “inhumane” youth detention centres.
Finally, the acceptance and promulgation of racist narratives surrounding First Nations children is a huge roadblock to dismantling the youth “justice” system and replacing it with a holistic, rehabilitation-centred approach to resolving the social phenomena and state failure that create youth crime in the first place. Widespread support for raising the age is contingent on broader social, cultural, and institutional decolonisation.
