Victoria's shadow attorney-general says raising the state's age of criminal responsibility will embolden gang leaders to recruit more children under 12, a position youth justice experts describe as "absolutely nonsensical".
As revealed by the ABC, the Andrews government will raise the age of criminal responsibility from 10 to 12 years. The policy is to go to cabinet on Monday.
Police Association Victoria secretary Wayne Gatt has called the move a "sensible outcome" that considered the needs of young people, the community and police.
"It is right that the government does consider 12 as the turning point, because things change at that age,'' Mr Gatt said.
Data from the Crime Statistics Agency shows that, last year, there were 65 alleged offender incidents recorded for 10-year-olds, 184 for 11-year-olds, 800 offences for 12-year-olds, 1,734 for 13-year-olds and 3,099 for 14-year-olds.
Mr Gatt said it was imperative that there were designated support places for police to take young people who were misbehaving but could not necessarily be taken to the family home.
He said the reform could help drive investment in resources from child protection and other welfare services.
"Child protection is overburdened. And it is always difficult for police to find places to take young people at the best of times,'' Mr Gatt said.
The decision to only raise the age to 12 years, and not 14 years, has angered advocates from across the legal, medical and social justice fields, as well as the state's Aboriginal treaty body, the First People's Assembly.
However, the state's shadow attorney-general, Michael O'Brien, said that, even raising the age to 12 was unnecessary, and could help gang leaders recruit children under that age to do their "dirty work".
"If those children can't be charged with any crime, I think it would be very naive to think that gang leaders won't be using that, and using those kids, to try and benefit themselves," Mr O'Brien said.
"We want kids to be kids. We don't want any incentive for gangs to be recruiting them."
The state opposition was criticised for its "tough on crime" approach to politics during the 2018 state election, in particular for its rhetoric around African gangs.
Monash University's Susan Baidawi — who researches children's experiences in Victoria's criminal justice system — said the opposition's position was not supported by the evidence.
Dr Baidawi said the potential criminal exploitation of children should not be "swept under the rug" and was a legitimate community concern.
"However, the claim that we need to continue to criminalise children, in order to protect them or safeguard them in some way, is absolutely nonsensical," she said.
"Children through those processes come to be exposed to other relationships and networks by which they can also be recruited and criminalised.
"If we have an issue with adults exploiting children, criminally or otherwise, then we have a problem with safeguarding children and we have a problem that needs a policing and safeguarding response. [It's] not a criminal justice issue."
University of Melbourne youth justice researcher Diana Johns said the opposition's position on raising the age to 12 was disappointing and "irresponsible".
"This contention is really just a fantasy. It's actually a red herring," Dr Johns said.
"It's an irrelevant piece of speculation that's designed to mislead and to distract from the reality of the situation, which is that 10- and 12-year-olds who may be vulnerable to exploitation by older teenagers and adults are not children that we should be criminalising. They are children that we should be caring for and protecting."
Opposition says safeguards are already in place for young offenders
Mr O'Brien also argued that the state's laws already contained safeguards to prevent children facing trial if they were unable to understand the nature of the charge against them.
"The law already requires a court to be satisfied to a very high standard that, if any young person aged under 14 is charged with a crime, the court has to be sure the person knew what they were doing, and they understood the gravity of their actions," Mr O'Brien said.
Dr Baidawi said there was evidence that this legal principle, known as doli incapax, was applied in a "very inconsistent" manner.
She said that, while a child's fitness to stand trial was being determined, they were often exposed to "criminalising processes", such as remand and missing school, that ultimately increased the risk of further offending.
Youthlaw's Ariel Couchman said she believed magistrates and judges operating in the Children's Court would welcome the clarity that came with a statewide ruling on raising the age.
"We think it'll make quite a significant difference," she said.
The Victorian Greens — who hold four key votes in the upper house — echoed calls from legal groups who said the government's decision to raise the age to only 12 years did not go far enough.
Meanwhile, the Australian Lawyers Alliance's Greg Barns said the policy meant "children in primary school can still be locked up and removed from their families".
"There is significant evidence showing that the younger children are when they first encounter the justice system, the more likely they are to reoffend and less likely they are to finish their education and find employment," Mr Barns said.
Children who are involved with the criminal justice system usually come from vulnerable and disadvantaged backgrounds, with more than half known to child protection services.
Westjustice lawyer Anoushka Jeronimus — who heads the community legal centre's youth law program — said the state spent more than $5,000 per child, per day, to keep them in jail and it was clear "jailing isn't working".
"Imagine the impact we could make on children, their families, and our community, if that money was spent on providing the education, well-being and family support needed to keep them out of trouble instead," she said.
