By Alistair Wyvill
Reducing the age of criminal responsibility from 12 years of age to 10 does not sound right. Even without careful reflection on what this actually means it seems unfair on children. What child aged 10 or 11 understands the difference between the exercise of ordinary human freedoms and criminal conduct sufficiently to be held responsible for the latter as if they were an adult? Even 12 and 13 seem too low, a view which is shared by United Nations’ Committee on the Rights of the Child.
Interventions by government into the lives of children can be justified when they are in the child’s best interests. That is the paramount consideration, for example, in cases of parental separation or neglect. Where children are a danger to themselves and others, intervention to protect the child and the public is also justified.
It is in the period immediately after this intervention that the significance of the imposition of criminal responsibility on children comes to the fore.
Once a child is taken into custody to protect the child and the public, the threat to the public necessarily ceases and the interests of the child usually come to the fore. Absent criminal responsibility, governments holding children in their custody are legally obliged to treat the child’s best interests as the paramount consideration.
This means that the conditions under which the child is held must be therapeutic. They must be designed in accordance with expert advice to improve a child’s mental, emotional and physical well-being, including by trying to heal or rehabilitate children who have experienced psychological distress, trauma or physical illnesses. If the child’s best interests are the paramount consideration nothing less would be acceptable.
Introducing criminal responsibility into the equation means that the best interests of children are no longer paramount. Rather, the “accountability” and punishment of those children are now considerations. Don Dale, an environment which is manifestly not therapeutic, has now become a lawful option for the custody of 10 and 11-year-olds in the Territory.
It is difficult to imagine a more vulnerable cohort.
The majority of those in the government’s sights are Indigenous. Their family circumstances are such that they probably have spent most of their lives in the Territory’s dysfunctional child protection system. Many suffer from FAS-D – incurable brain damage from prenatal exposure to alcohol – which requires carefully designed therapeutic care and support if the child is to have any prospect of a life outside of institutions.
This highlights the obvious consequences of this brutal and uncivilised approach to children. Their illnesses and conditions are unlikely to be treated and almost certainly will become worse.
Their prospect of a life outside of institutions diminishes if not disappears. Whatever might be saved by using Don Dale over a properly resourced therapeutic facility will be spent many, many times over on the consequences of that failure for the rest of these children’s lives.
Finally and most appallingly, being intended to punish and thereby harm a group of children which the government knows is predominantly Indigenous, in the context of the history of the Territory and as explained by historians like Tony Barta from Latrobe University and Professor Damien Short from the University of London, this measure is also fairly characterised as genocidal.
Mahatma Gandhi observed that “the true measure of any society can be found in how it treats its most vulnerable members.”
This brutal, uncivilised, costly and genocidal attack on our most vulnerable by a newly elected government with a mandate to make it reflects poorly on all of us and calls further into question the Territory’s capacity to govern itself.
Alistair Wyvill SC is a barrister who has practised in the Territory for nearly 30 years.
Mr Wyvil may want to take some courses in critical thinking and also spend some time (probably supervised) with children. He clearly has no children of his own, nor spent any decent amount of time around children, otherwise he would know full well that 10 year olds understand the difference between right and wrong quite well.
The parents of these young criminals have failed them and it us upon us to do the best for those poor kids as possible. That includes holding their abusive/neglectful parents legally responsible for their failures as parents, as well as holding the children responsible for their actions (albeit with understanding that these are children, not adults).
Children do best when they are given clear rules and boundaries to follow and there are clear and fair consequences for breaking the rules and bad behaviour.
Racists like Alistair Wyvill who believe that Aboriginal people can’t be held to the same standards as non-Aboriginal people have no place in this discussion.
For two terms of Labor, we have seen our social fabric and livability of NT reduced to that of a third world country.
The so-called experts advising NT decision makers to have had their chance. Time for radical change based on common sense.
The major flaw in the argument is the lack of alternatives for dealing with the problems. Magistrates have been reluctant to sentence children to detention and that action is not taken until they have been apprehended by police multiple times. There must be a legal process for them to be taken into therapeutic care and not just dumped with a supposed responsible adult which is the normal process because our police do not have the resources.
Hello here’s my 2 bobs worth.
Three words and it’s sorted!
Capacity
Accountability
Duty of care
If a person is given funds for no toil there is no capacity to comprehend worth.
If a person, having access to funds for no toil purchases items that are known medically as harmful then, in this situation has not the provider of funds failed in exercising a “ duty of care”!
Is it not the Australian taxpayer that should be accountable.
Controlling what can be purchased from funds for no toil, provided by taxpayers is responsibility exercised. Defining what is a necessity and what is a luxury/ want item is not difficult.
The Civil liberties argument can leave no footprint on such an argument due to the fact, using an extreme, that it could be argued funds for no toil are insufficient in that “ why can’t one buy a boat” !
This mentality of “ capacity to understand” with regard to the mindset of a child engaging in criminal activity is a deviation from the reality. The capacity to parent, the lack of exercising a duty of care falls on the parent and society for at days end, as a community we are accountable for both our lack of action and our capacity to give each child a better life.
In reality, all the conditions imposed by government such as, dry zones, security guards at food and alcohol venues plus showing ID to purchase alcohol can be reasonably argued as Racist toward certain section group of Australians. These controls/restraints are not seen as the “ norm” across this great nation but in certain places and that is the question “ why”. You may hide, duck or wear a mask but this a failure in capacity through assessment and action. A failure of duty of care in that each Australian person should be treated fairly and with dignity! Accountability due to the fact that the choices and actions of past and today do not ethically answer or reflect a positive safe change for Australians.
In closing, it appears there is a portion of the Australian people, that amongst them exists those that seek to distance themselves racially and it seems apparent that when they speak we here reference to a shade( black is not a colour). The expensive “YES referendum” showed the majority greats each other as Australians!
Lidia Thorpe has completely ignored her Irish English heritage, is she not racist as such not fit to be listened to let alone hold office. Lydia appears to not be accountable for her genes, and has no capacity it seems to engage with a fair and equitable mindset.
Where is 31.5 Billion dollars, collected as royalties over the last 10 years?
Why do we not see tax revenue from this 2nd source of income?
Why are the recipients of these funds not distributing this income amongst their fellow Australians and releasing the burden of funds for no toil from tax paying Australians?
This is a massive fund that could be invested and create a self healing forward moving mindset.
And that’s it