Should Australia raise the age of criminal responsibility?
At Morrisons, we are specialist criminal and traffic lawyers based in Wollongong and the Southern Highlands, if you require advice about a Children’s Court matter, you can book an appointment with one of our expert criminal lawyers.
In Australia, children as young as 10 years old can be arrested, strip searched and imprisoned. Recently, there has been a renewed push to raise the age at which children can be held criminally responsible to 14 years old.
What is the age of criminal responsibility?
Fundamentally, the age of criminal responsibility refers to the minimum age at which a child can be held criminally responsible and therefore be liable to be charged with a criminal offence.
In Australia, each state and territory are responsible for setting the minimum age of criminal responsibility in their jurisdiction.
Currently, in all states and territories in Australia, the minimum age a child can be held criminally responsible is 10 years old.
Children between the ages of 10 and 14 are presumed not to know their criminal conduct is wrong, under the principle of ‘doli incapax’. However, this is a rebuttable presumption. This means that if a prosecutor can prove the contrary, that the child did know that their conduct was criminally wrong, that child can be found guilty of an offence.
United Nations Human Rights Council recommendation to raise the age
In 2019, the United Nations Committee on the Rights of the Child, recommended that Australia raise the age to 14 years old.
This year, 31 member states of the United Nations (‘UN’), urged Australia to raise the age during the UN Human Rights Council (‘the Council’) universal review process, a meeting that takes place once every five years to review the human rights records of all UN member states.
Australia has been criticised by other countries, Human Rights Advocates and Medical and Legal Professionals for their response to this recommendation.
In its response to the Council, the Australian Government noted the recommendations but did not support them. Stating that “Responsibility for the minimum age of criminal responsibility is shared between the Australian government and states and territories”.
Australia also noted that “some Australian governments have announced an intention to raise the minimum age of criminal responsibility.”
However, progress in Australia has been limited. A Council of State and Territory Attorney Generals conducted a review of the age of criminal responsibility, in an attempt to reach a national approach on the issue. However, in July 2020, the council indicated that Australia’s attorney-generals could not reach agreement on the issue, and that further work needed to be done to provide ‘adequate processes and services for children who exhibit offending behaviour.’
A year since the deferral of the decision, the ACT is the only Australian jurisdiction that has committed to raising the age. It is expected a bill will be introduced into the ACT parliament sometime this year.
In light of this inaction, 48 organisations have released their submissions to the council of attorney-generals and called on all levels of government to raise the age of criminal responsibility as a matter of urgency. These submissions can be read here.
Why should we raise the age of criminal responsibility?
Raising the age of criminal responsibility has been overwhelmingly supported by key legal, medical and human rights bodies in Australia.
Key reasons for raising the age include:
Children’s cognitive and psychological development
Raising the age is consistent with consensus in the medical community, that children should be protected from the full rigour of the criminal law.
Research indicates that adolescent children, are in a period of significant psychological, moral, and personal development, and don’t yet have the intellectual capacity to be considered criminally responsible.
Immaturity of adolescent people can affect several areas of cognitive function, including impulsivity, reasoning and consequential thinking. This impacts on a child’s ability to comprehend the consequences of their actions in a criminal sense. As the Aboriginal Legal Service suggested, children under 14 do not have sufficient maturity to exercise judgment and control that would justify holding them criminally liable.
This understanding of childhood is reflected in other areas of law and society. In Australia children are not viewed as having the maturity to vote, marry, drink alcohol, apply for a drivers licence or consent to sexual intercourse. It is inconsistent with this understanding of a child’s development to hold a child criminally responsible and subject them to arrest, charge and detention.
Inadequate protection for children under the current laws
Many legal professionals suggest that the existing principle of doli incapax does not provide sufficient protection for juvenile people and has not served its intended purpose.
Many practitioners practising in the Children’s Court, highlight that children are being subjected to lengthy exposure to the criminal justice system, only to find that the child did not have the capacity to understand their actions were criminally wrong. This means that children as young as 10 are arrested, charged, subjected to bail or held in custody and have to attend court, all of which are traumatic processes for a child, where a child did not understand their actions were criminally wrong.
Early contact with the criminal justice system and subsequent re-offending
Another significant concern is that early interactions with the criminal justice system can often lead to subsequent re-offending. The NSW bar association suggested that early and frequent contact with police, remand, courts and juvenile detention is a recognised pathway towards repeated criminal offending and imprisonment during adulthood.
Statistics from the NSW Bureau of Crime Statistics and Research highlight that almost 80 percent of juvenile offenders in NSW were reconvicted within 10 years, compared with 56 percent of adult offenders.
Over representation of Aboriginal and Torres Strait Islander children in the juvenile justice system
Aboriginal and Torres Strait Islander children are significantly overrepresented in the juvenile justice system and have been disproportionately affected by the current minimum age.
The Australian Medical Association noted that, in March 2019, there were around 600 children under the age of 14 in juvenile detention, with Aboriginal and Torres Strait Islander children representing 70 percent of that cohort. This can have the impact of creating a cycle of disadvantage that traps Aboriginal and Torres Strait Islander people in the criminal justice system.
It has been suggested that raising the age would assist in reducing the over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system.
Young people with intellectual and psychosocial disabilities
Children with intellectual and psychosocial disabilities are also significantly overrepresented in the juvenile justice system.
Studies highlight that young people with cognitive disabilities are particularly vulnerable to criminalisation and have higher rates or recidivism and repeat incarceration compared to those without cognitive impairment.
Submissions to the council highlight a ‘distressing’ link between young people with disability and other ‘at risk’ young people and involvement in the juvenile justice system.
A study of youth detainees at Banksia Hill Detention Centre in Western Australia found that:
- 89 percent of incarcerated young people had at least one form of severe neurodevelopmental impairment;
- 25 percent had an intellectual disability; and
- 36 percent had Foetal Alcohol Syndrome Disorder.
Submissions in support of raising the age suggest that these children should be provided with appropriate treatment to address their intellectual and psychosocial disabilities and not be drawn into the criminal justice system.
Suggesting that the minimum age should be raised, does not mean that children who engage in criminal conduct will not face any consequences. Instead, it is suggested that early intervention, prevention, diversion and rehabilitation programs, that already exist, should be built on to provide an alternative to the criminalisation of children between 10 and 14.
At Morrisons we are specialist criminal and traffic lawyers in Wollongong and the Southern Highlands. Our solicitors regularly appear in the NSW Children’s Court. If you, or someone you know, require representation or advice in relation to a Children’s Court matter, you can book an appointment with one of our expert criminal lawyers here.