Introduction

Childhood is a unique period of physical, mental, emotional and spiritual  development and violations of children’s rights…may have lifelong, irreversible and even transgenerational consequences.

In light of the above quote, it becomes pertinent for all States to carefully consider and protect the unique rights available to juveniles by guiding their policies in this direction. However, the Northern Territory (NT) government of Australia has taken the opposite direction. While the internationally admissible level of minimum age of criminal responsibility (‘MACR’) is set at 14 years, the new NT government has passed laws reducing it from 12 years to a disturbingly low level of 10 years. The enforcement of internationally accepted juvenile standards remains inadequate in nearly all Australian states with fruitless promises by the government to raise the MACR or to eliminate discrimination against indigenous children in the justice system.

While many have tried to encourage the fulfillment of such juvenile rights/standards in Australia by providing a scientific and logical perspective, this paper will show how they can be enforced under “progressive realization” after acknowledging the “shared priorities in the implementation” of human rights. To that end, it first, provides a brief overview of the rights of juveniles under international instruments. Second, it examines the criticisms advanced against the impairment of juvenile rights in Australia and the responses of the government to them. Third, it shows how the components of these rights can be achieved through “progressive realization”. Fourth, it analyzes the conflict standing in the way of such realization and resolves it through the concept of “shared priorities of implementation”.

International Standards of Juvenile Rights

The right to special care and assistance for children has been recognized under Article 25 of the Universal Declaration of Human Rights (‘UDHR’). Similarly, both the International Covenant on Civil and Political Rights (‘ICCPR’) and The International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) recognize the special position of a child. The ICCPR guarantees every child certain rights keeping in mind their status as a minor and the ICESCR ensures that special measures of protection and assistance are taken on behalf of all children.

Keeping this in mind, the Convention on the Rights of Child (‘CRC’) has laid down some provisions regarding how children committing any offence should be dealt with. They consider children’s vulnerability and immaturity to ensure they are treated in a way that takes into account their age. Article 37(a) of the Convention urges the State Parties to ensure that children are not subjected to any degrading treatment or punishment and Article 37(b) encourages them to use arrest and detention only as a last resort. Article 40(3)(a) provides for the State Parties to establish a MACR. This means that children below this age level would be presumed to not have the capacity to infringe criminal law. The UN Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules”) bars the fixing of MACR at a level that is too low. The General Comments (‘GCs’) adopted by the Committee on the Rights of the Child (‘ComRC’) have outlined the basic standards regarding MACR that States are recommended to follow. GC No. 10 says that according to the Committee, a MACR below 12 years should not be internationally acceptable. It was replaced and revised by GC No. 24 which suggested a MACR of 14 years. It prevents State parties from decreasing their MACR if it is higher than 14 yearsor lowering the MACR below 14 years through any exception. Hence, the international standards developed over many years recommend that the MACR of a State should not go below 14 years.

Alongside this, Article 2 of the CRC also mandates non-discrimination by the State Parties. The GC No. 24 goes a step ahead by pushing State Parties to take affirmative measures to ensure that particular children are not discriminated against during the application of their juvenile laws. It takes special care to mention that even though the laws might not themselves be discriminatory, the State should pay attention to “de facto” discrimination. GC No. 11 notes that indigenous children may require positive measures on the part of the States to remove discriminatory conditions.

Status of Juvenile Rights in Australia: A Gap in Compliance

Australia signed and ratified the CRC in 1990. Hence, it should align its juvenile laws along the lines of the provisions of CRC and the GCs adopted by ComRC. However, the reality speaks otherwise.

Presently, except Victoria, all other States in Australia have set the MACR far below at 10 years. The pictures in Victoria and the NT jurisdiction are quite opposite to each other. On one hand, the government of Victoria has raised the MACR from 10 to 12 years. On the other hand, the new NT government has decided to lower the MACR to 10 years only a year after it became the first jurisdiction in Australia to raise the same to 12 years. This indicates a significant consensus among most of the Australian states to remain well below the internationally accepted level of MACR. Naturally, it has received much criticism from others.

In its most recent Concluding Observations on the combined fifth and sixth periodic reports of Australia (2019), the ComRC showed regret and concern for Australia not implementing its recommendation to raise the MACR as per the international standards. In 2021, the Universal Periodic Review Report by the Human Rights Council laid down recommendations on behalf of many countries for Australia to raise its MACR. The Amnesty International in Australia has also shown concern regarding the MACR in Australia in light of the global average MACR being 14 years old. There is concern that detaining children at such a lower age would result in harmful effects on their development.

In 2019, as a reply to the issue of low MACR, the Australian governments merely stated that they have been working together on the issue by constituting a CAG working group which was to suggest whether the MACR should be raised. However, even though the CAG working group recommended raising the MACR to 14 years, no Australian State has taken the initiative to raise the MACR to 14 years. According to the Australian Government, 10 years is an appropriate MACR because firstly, it demonstrates how increased access to education and information technology has improved Australian children’s capacity to differentiate between right and wrong; secondly, it agrees with the modern Australian’s expectations of children’s criminal responsibility; and thirdly, it is suited to the unique context of Australia’s socio-legal environment. It also posited the principle of ‘doli incapax’ (there is a rebuttable presumption that children aged from 10 to 14 years are incapable of committing a crime) as a reasonable safeguard. Nevertheless, it is contended that neither improved access to education/technology builds a child’s morality nor is the safeguard of ‘doli incapax’ applied consistently in an effective manner.

Unfortunately, the issue doesn’t end at the worrying level of MACR. A Human Rights Watch report indicates the disparities in the proceedings from arrest to bail in cases of Aboriginal children in Australia. The indigenous people have historically faced over-representation in both the juvenile and adult justice systems in Australia. The NT government is accused of targeting its reforms lowering the MACR towards the Aboriginal people. In its Concluding Observations on the combined fifth and sixth periodic reports of Australia (2019), the ComRC also showed concern for the extensive discrimination faced by Aboriginal and Torres Strait Islander children who have a large representation in criminal proceedings. To such issues, Australia has committed to a reduction of the representation of the indigenous people in custody by 23% by 2028-29. However, studies show that the over-representation of indigenous children has not decreased from 1994 to 2006 and has actually increased from 2019 to 2023 with indigenous children being 23 times more likely than non-indigenous children to be detained.

These issues become even more pressing with distressing news like Queensland suspending its Human Rights Act to detain children in watch houses for adults or instances of children isolated in cramped quarters during detention in the NT jurisdiction. Hence, it is pertinent to establish a course of action under the human rights framework that substantiates and is specific to enforcing the internationally compatible juvenile standards in Australia.

Part II of this blogpost will delve into the achievement of juvenile rights through progressive realization and address the apparent conflict that arises through the implementation of core obligations to enable this progressive realization.

Click here to read part II.

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Debarchita Pradhan is a third-year student currently pursuing BA LLB (Hons.) at the National Law School of India University, Bangalore.

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Picture Credit: Frederic J. Brown