Dear Recoznetters,
I suggest we start the new year off with some fundamental activism -
letter writing!
The Carr govt is proposing to review the age at which children are
deemed to understand that their 'criminal' conduct is wrong. The Carr
govt is proposing to lower the age from 14 to 12.
Aside from the primitive inclinations and lazy bureaucracy that would
even countenance the idea that children are capable of understanding the
difference between 'wrong' and what is deemed a 'crime' at that age or
that they are capable of recognising the consequence of their actions,
the effect of any lowering of the age would have its most disastrous
effect on Aboriginal children since they are the target of most police.
The Carr government's stated objective is to reduce the number of
Indigenous people in jail and yet, the ratio of Indigenous versus
non-Indigenous keeps on growing. The Carr govt has attempted some very
innovative programs for Indigenous inmates with some measure of success
but it hasn't managed to lower the numbers. Two years ago, Jeff Shaw
promised in a letter to me (in so many words) that the 'offensive
language' clause would be removed from the statutes but this has not
been done either.
I will post another couple of articles on this subject together with
letters to the editor in a separate email so you can familiarise
yourself with the issues.
Please read the article below and then write a letter to Premier Bob
Carr. If you send an email, print off a copy and snail mail it to him as
a follow up and ALSO send a copy to the A-G Jeff Shaw with a reminder to
remove the 'offensive language' legislation.
If you are able to fax, then that is preferable since anything on paper
cannot be ignored.
The relevant addresses are listed below the article.
I urge every member of Recoznet2 to take the time to write a letter! It
doesn't have to be long so long as it gets the point across.
Trudy
****************************
The Sydney Morning Herald
Suffer the children
Date: 14/01/2000
THE NSW Government has decided to review the legal principle by which it
is presumed that children aged between 10 and 14 are
incapable of knowing that criminal conduct is wrong. Specifically,
consideration is being given to lowering the upper age limit from 14 to
12. The application of the principle, known to lawyers by its Latin
phrase, doli incapax, is often misunderstood.
Doli incapax literally translates as "incapable of wrong". The way the
principle works in the juvenile justice system is that there is a
presumption that children who have turned 10, but have not yet reached
the age of 14, are incapable of knowing that criminal conduct by
them is wrong.
They are presumed incapable of committing a crime because they lack the
criminal intention to commit a criminal offence.
This does not mean that children aged between 10 and 14 will
automatically be found not guilty. Doli incapax can be challenged by the
prosecution, if it can establish beyond reasonable doubt that the child
knew that when he/she committed the act, he/she knew that it was
an act of some seriousness, and not just mere naughtiness or mischief.
The principle of doli incapax should not be confused with the law of
criminal responsibility. Many assume that doli incapax means that
children under 14 cannot be charged with a criminal offence. This is not
correct.
In NSW - as is the case in the other mainland States and the Northern
Territory, but not the ACT and Tasmania - the age at which a
person is held to be criminally responsible is 10. This means that
anyone over the age of 10 can be charged with a criminal offence. Doli
incapax merely requires that for defendants aged between 10 and 14, the
prosecution must establish that the defendant knew his/her
conduct was seriously wrong.
Currently, the doli incapax principle is applied in all Australian
States and Territories up to the age of 14. After the age of 14, the law
presumes that a child assumes full criminal responsibility, but is still
able to be tried in the Children's Court up to the age of 18 (in NSW).
At 18, the child assumes full adult legal responsibilities.
This staggering of assumption of full adult criminal responsibility in
the juvenile justice system is an attempt to recognise that up to the
age of 18, children and young people are at different stages of
development and understanding.
The doli incapax principle is a practical way of acknowledging that for
the age group of 10 to 14 in particular, children have
wide-ranging rates of intellectual and emotional development and
differing levels of understanding. Importantly, it recognises that the
rate
of development cannot be standardised across this particular age group.
An advanced and mature 11-year-old may have a greater awareness of the
criminality of his/her conduct than a developmentally delayed
13-year-old. The principle forces prosecutors to acknowledge and
consider the degree of responsibility, maturity and awareness of
individual child defendants.
In the case of the advanced 11-year-old, it should be much easier for
the prosecution to rebut the presumption, than in the case of the
developmentally delayed 13-year-old. In this sense, the principle is
useful in protecting those children who develop more slowly than
most.
Importantly, the principle also recognises that the 10-to-14-year age
group is still a vulnerable age group with uncertain levels of maturity
and understanding. Like many other aspects of the legal system, it is
appropriate that the law make special allowances for such age
vulnerabilities, by providing children in that age group with some
protection from the inflexible operation of the letter of the law. The
law
makes special provision for the protection of young people on the basis
of age in relation to the age of consent for sexual intercourse,
access to gambling and alcohol, access to R-rated films, driving a motor
vehicle, etc.
These are all examples of the legal system recognising that young people
are at different stages of development and have different levels
of understanding. Accordingly, some protection is afforded.
So why has the NSW Government chosen to review the doli incapax
principle now?
Only in 1997, the Human Rights Commission and the Australian Law Reform
Commission, in their extensive inquiry into children and
the legal process ("Seen and Heard: Priority for Children in the Legal
Process") strongly endorsed the doli incapax principle. They
recommended that all States and Territories provide in legislation that
the principle apply to all children under 14.
The Government has questioned whether the principle is appropriate to
21st-century society. This reflects the views of several
commentators that children, by virtue of their greater access to
information and education, are more sophisticated and mature today than
they were in previous centuries or decades.
Indeed it is true that children and young people are able to access more
information now than ever before. However, whether
bombarding young people with greater quantities of information leads to
a faster rate of developmental maturity, criminal responsibility
and awareness is not clear.
Even if true, it still does not acknowledge that not all children have
the same level of access to the information superhighway. It still does
not acknowledge that some children do develop at slower rates than
others.
And, in recognising the greater level of sophistication of children
today, by logical extension, reviews should also be undertaken in
relation to all other legal age limits, some of which were listed above.
Curiously, there has been no call to consider lowering the voting age in
recognition that young people are more sophisticated, informed,
and thereby able to exercise greater responsibility in discerning right
from wrong.
Too often, proposals to review aspects of the criminal justice system
seek to remove fundamental protections for those who are most
vulnerable in the community. Nowhere is this more obvious than proposals
to reduce the rights of children and young people in the
juvenile justice system.
The doli incapax principle is a mechanism by which developmentally
delayed, disadvantaged, disabled and emotionally immature
children in the particularly vulnerable age bracket of 10 to 14 are
protected from the rigorous presumptions of adult criminal
responsibility.
Any move to remove or restrict the application of this principle to this
age group removes an important safeguard for some of the most
vulnerable and least empowered members of society.
Louis Schetzer is the director and principal solicitor of the National
Children's and Youth Law Centre.
This material is subject to copyright and any unauthorised use, copying
or mirroring is prohibited.
****************************
ATTORNEY GENERAL
THE HON. J. W. SHAW, Q.C., B.A., LL.B., M.L.C.*
Level 20, Goodsell Building,
8-12 Chifley Square, Sydney 2000
Phone: (02) 9228 8188
Fax: (02) 9228 7301
Carr, The Hon. Robert John
Premier, Minister for the Arts, and
Minister for Citizenship
Level 40
Governor Macquarie Tower,
1 Farrer Place,
Sydney 2000
Tel: 61 2 9228 5239
Fax: 61 2 9228 3935
[EMAIL PROTECTED]
-------------------------------------------------------
RecOzNet2 has a page @ http://www.green.net.au/recoznet2 and is archived at
http://www.mail-archive.com/
To unsubscribe from this list, mail [EMAIL PROTECTED], and in the body
of the message, include the words: unsubscribe announce or click here
mailto:[EMAIL PROTECTED]?Body=unsubscribe%20announce
This posting is provided to the individual members of this group without permission
from the
copyright owner for purposes of criticism, comment, scholarship and research under
the "fair
use" provisions of the Federal copyright laws and it may not be distributed further
without
permission of the copyright owner, except for "fair use."
RecOzNet2 is archived for members @
http://www.mail-archive.com/recoznet2%40paradigm4.com.au/
