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Without Prejudice: April 2023

Isabella Thomas

Content warning: this publication addresses topics including the incarceration of children, racial discrimination, transphobia and antisemitism. If you require support, reach out via web chat or phone call to Lifeline (13 11 14), 13YARN (13 92 76), or Q Life (1800 184 527).

Activist groups continue to call on Australian parliaments to raise the age of criminal responsibility.

What is the law currently?

Australian common law assumes that children under 14 are too young to be held responsible for criminal offences. However, current legislation only protects children under the age of 10. For Commonwealth offences, this is set out in the Crimes Act 1914 (Cth), and is reflected in state law in Victoria’s Children, Youth and Families Act 2005 (Vic). The common law presumption can be rebutted for children between the ages of 10 and 14 where there is evidence the child had an understanding that what they were doing was wrong. If convicted of a serious offence, children as young as 10 can be made to serve jail sentences.

Calls for change

Social workers, medical experts and lawyers have expressed concern over the severe impact incarceration has on young children. The current law disproportionately affects Indigenous children, with up to 78% of children between the ages of 10 and 13 in youth detention centres being of Indigenous identity.

In 2021, the United Nations called on Australia to raise the minimum age of criminal responsibility to 14, as recommended by the United Nations Committee on the Rights of the Child. The Law Institute of Victoria echoed this call, outlining therapeutic and education-based options to support the rehabilitation of children who have committed criminal acts, as an alternative to youth custody. A petition has also been formed which echoes these calls to #raisetheage, which can be found here:

In response to these calls, the states have been in discussions negotiating a nationally consistent approach to raising the age. If no agreement can be reached, Victorian Premier Daniel Andrews has expressed commitment to raising the age in Victorian law.

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Victorian Government To Discuss Banning Nazi Salute

The Victorian Government has announced it is considering toughening legislation designed to prevent hate crimes and vilification. Vilification is behaviour that incites hatred, serious contempt, revulsion or severe ridicule for a person or group of people, because of their race or religion. This was set out in section 8 of the Racial and Religious Tolerance Act 2001 (Vic).

The announcement came after a recent rally against transgender rights in Melbourne, where a group of people were seen demonstrating the so-called 'Nazi salute'. Victorian members of parliament took to the media to express disapproval of the group who performed the salute, and outlined their intention to consider whether legislative action would be effective in preventing further hateful displays.

The proposed ban would continue the strengthening of anti-vilification laws following the Summary Offences Amendment (Nazi Symbol Prohibition) Act 2022 which was passed by the Victorian Parliament last year to outlaw intentional public display of the Nazi swastika, in recognition of the symbol’s connection to hateful violence. Victoria was the first Australian state to pass legislation of this kind. While the display of this symbol is now criminalised, this Act did not extend to the Nazi salute as displayed at the rally.

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