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Getty Images / Tina Tiller
Getty Images / Tina Tiller

PoliticsFebruary 2, 2023

10-year-olds can be charged with murder in NZ. The UN says that should change

Getty Images / Tina Tiller
Getty Images / Tina Tiller

An international human rights group has called on NZ to raise the age of criminal responsibility to at least 14. Don Rowe explains what’s going on.

What’s all this then?

The United Nations Committee on the Rights of the Child has criticised the New Zealand government for failing to raise the minimum age of criminal responsibility – the age at which children may be prosecuted for criminal offending – from 10 to at least 14 years old. New Zealand’s current minimum age of 10 years old was set more than 60 years ago in 1961.

Under the current legislation, children aged 10 and 11 can be charged with murder or manslaughter, and since 2010 those aged 12 and 13 can be sentenced for serious or persistent offending.

During its 92nd session last week, the committee described the government’s approach as an “offence-based”, rather than a more desirable “child-based” approach. It asked the government to provide information around what steps are being taken to bring the law in line with United Nations guidelines. New Zealand, the committee said, is “just not getting children’s rights right”.

What did we have to say about it? What are people saying on the ground?

New Zealand’s representative told the committee the government is due to report back to the UN as part of its Universal Periodic Review in 2023.

“This report will include showing progress on aligning our minimum age with international best practice,” she said. “Officials are working through the implications of raising the minimum age including consideration of legal and resourcing applications. It’s too early to say what will be included in the update at this point.”

In 2021, the government pledged to monitor the progress of a working group set up to review the law in Australia, where most states have a current minimum age of 10.

Amnesty International Aotearoa New Zealand campaign director Lisa Woods said the UN review was a “damning indictment of the political lethargy which continues to put young people at risk of life-long harm”.

“What we risk with the current legislation is using the criminal justice system to respond to issues caused by, for example, trauma and a lack of health and mental health support,” she said.

“Instead of solving problems caused by a lack of resources and services, our current laws are funnelling children into a system that can trap them for the rest of their lives. This does irrevocable damage to the child, their whānau, and to the rest of society.”

Why does the UN care about our criminal statutes anyway?

New Zealand ratified the UN Convention on the Rights of the Child (CRC) in 1993. The convention enshrines children’s rights in international law and defines universal standards regarding the status and treatment of children worldwide. Interestingly, the United States of America is one of only three nations yet to ratify the treaty, along with Somalia and South Sudan.

Serious criminal offending by children in New Zealand is extremely rare. Amnesty International argues that, given offending by those aged 10 to 11 is already predominantly managed outside of the criminal justice system, raising the minimum age to 12 could be achieved overnight.

“Raising the age of criminal responsibility is one of the many changes needed to improve the youth justice system in Aotearoa New Zealand,” said Woods. “Ultimately, transformational change is needed across many of the country’s big systems. Raising the age of criminal responsibility is just one of many steps that the government must take.”

Aren’t the youth causing havoc? Ram-raids? Why would we raise the age?

The UN criticism comes at a time when youth offending is increasingly in the public eye. Last year, around 80% of the hundreds of youth charged with ram-raiding offences were under the age of 18. A police briefing paper said offending was driven in part by the use of social media, particularly TikTok, “to promote their criminal offending and gain notoriety”.

But Dr Luke Fitzmaurice, a lecturer at Victoria University of Wellington specialising in children’s protection and rights, characterised the ram-raid response as reactionary and disconnected.

“This call to ‘lock them up’ won’t work,” he said. “The whole bootcamp thing has no evidence, all of those conversations have been had before. The way to solve that problem is to support those kids in the long term. Some people don’t like that, but the evidence is really clear.

“For this group of kids hitting the system at that age, 10 to 13, they’re the most likely to enter that pipeline which ends up in the adult criminal justice system. The kids coming to the attention of the system that young are at high risk of staying in the system.”

So we raise the age – kids still commit crimes. Then what?

One alternative framework is a kaupapa Māori response, which has a more holistic and collectivist view of responsibility, Fitzmaurice said.

“The criminal justice system rubs against that quite obviously because it’s all about individual responsibility. But the values of collective responsibility and a collective response would only be more effective for those younger people who need support and not condemnation.

“A collective response, whether that’s as Māori or more broadly as a society, I think would be more restorative than an individualistic and punitive view for the 10, 12, 13 year old kids who need that most.”

Ironically, the jurisdiction of the Youth Court was extended to 17-year-olds following the overhaul of Child, Youth and Family in 2015, although Fitzmaurice said officials recommended 18- and potentially even 19-year-olds be kept out of the adult system where possible. International evidence suggests offenders in their early 20s may benefit from the less punitive youth system, but politically that is an obviously tough sell.

The UN CRC’s 92nd session is due to wrap up on February 3.

This is Public Interest Journalism funded through NZ On Air.

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