Age of criminal responsibility in Australia

The age of criminal responsibility in Australia is the age below which a child is deemed incapable of having committed a criminal offence. In legal terms, it is referred to as a defence of infancy. All states and self-governing territories of Australia have adopted 10 years of age as a uniform age of criminal responsibility. Concerns have been raised about the effects of criminalisation of such young children, and in particular the effects on Aboriginal Australians and Torres Strait Islander people, who are disproportionately represented in the statistics, often reflecting as well as increasing a cycle of disadvantage.

Since 2019, the Council of Attorneys-General Age of Criminal Responsibility Working Group has been tasked with considering submissions from a range of organisations and experts of various backgrounds regarding raising the age to 14. In mid-2020 they indicated that more work needed to be done on alternative forms of punishment before they could make their recommendations.

Background

Doli incapax refers to a presumption that a child is "incapable of crime" under legislation or common law, or rather, the presumption that a child cannot form mens rea as they do not yet have a sufficient understanding of the difference between "right" and "wrong". In the context of Australian law, doli incapax acts as a rebuttable presumption for children aged at least 10 but less than 14.[1]

To rebut this presumption, the prosecution must prove beyond reasonable doubt that the child knew that the act was seriously wrong (not by standards of law, but morally or according to the ordinary principles of reasonable persons) “as distinct from an act of mere naughtiness or childish mischief”.[2]

Calls to raise minimum age

In 2018, legal and medical experts called for the age to be raised to 14. In response, the state and commonwealth Attorneys General decided to investigate the matter,[3] and the Council of Attorneys-General Age of Criminal Responsibility Working Group was established to do this.[4][5]

According to Australian Medical Association President Dr Tony Bartone, raising the minimum age of criminal responsibility will prevent the unnecessary criminalisation of vulnerable children. In an Australian Medical Association media release, Dr Bartone said:[6]

Australia has one of the lowest ages of criminal responsibility in the world.

The criminalisation of children in Australia is a nationwide problem that disproportionately impacts Aboriginal and Torres Strait Islander children.

Most children in prison come from backgrounds that are disadvantaged. These children often experience violence, abuse, disability, homelessness, and drug or alcohol misuse.

Criminalising the behaviour of young and vulnerable children creates a vicious cycle of disadvantage and forces children to become entrenched in the criminal justice system.

Children who are forced into contact with the criminal justice system at a young age are also less likely to complete their education or find employment, and are more likely to die an early death.

In November 2019, Attorney-General of Australia, Christian Porter, was of the opinion that the current system was working well.[7]

In the year ending 30 June 2020, there were almost 600 children aged 10 to 13 in detention in Australia.[8] Criminologist Chris Cuneen cites a number of well-founded reasons for increasing the minimum age of criminal responsibility in Australia to 14, echoing Dr Bartone's list above.[9] Doctors, lawyers, and a range of experts have called for the minimum age to be raised to 14.[10]

The Australian Human Rights Commission submitted its report, Review of the age of criminal responsibility, to the Working Group on 26 February 2020.[4] The Law Council of Australia submitted its report on 2 March 2020.[5] However on 27 July 2020 the Working Group said that more work needed to be done to determine alternative ways to deal with young offenders, and that the age would remain as it is for at least another year. Both the Attorney General of New South Wales, Mark Speakman, and the Attorney General of South Australia, Vickie Chapman, expressed would not consider passing state laws until the Working Group had finished its review.[11][12]

Effects on Indigenous children
See also: Indigenous Australians and crime

There has been much commentary on the effect that incarceration of children has on Aboriginal and Torres Strait Islander people's lives, with Indigenous children disproportionately represented in the figures (more than 60% of 10–13-year-olds). The Law Council, the Royal Australasian College of Physicians and others have said that there needs to be more emphasis on "support services, treatment, early intervention, prevention, justice reinvestment initiatives and community-led diversion programs", built on Indigenous authority and culture.[9][13] The matter of incarceration of Indigenous adults and children, and a recognition of its relationship to disadvantage, has been recognised and reflected in the 2020 targets of the federal government's Closing the Gap strategy.[14]

A documentary film by Maya Newell called In My Blood It Runs follows a 10-year-old Arrernte/Garrwa boy who got into trouble and was almost imprisoned. As a twelve-year-old, the boy was the youngest person ever to make a speech to the UN Human Rights Council about youth incarceration.[7][15]

By jurisdiction
Jurisdiction Cannot be charged with a criminal offence Doli incapax

acts as a rebuttable presumption [16]

 Age in adult court Reference
CommonwealthUnder 1010 to under 1418Crimes Act 1914, s4M Criminal Code Act 1995, s7.1;

Crimes Act 1914, s4N Criminal Code Act 1995, s7.2

Australian Capital TerritoryUnder 1010 to under 1418Criminal Code 2002, s25 Criminal Code 2002, s26;

Children and Young People Act 1999, Part 1.3 ss7 and 8, and s69

New South WalesUnder 1010 to under 1418Children (Criminal Proceedings) Act 1987, s5; Common law: doli incapax;

Children (Criminal Proceedings) Act 1987, s3

Northern TerritoryUnder 1010 to under 1418Criminal Code Act, s38(1), s38(2);
QueenslandUnder 1010 to under 1418Criminal Code Act 1899, s29(1); Criminal Code Act 1899, s29(2); Juvenile Justice Act 1992, Schedule 4
South AustraliaUnder 1010 to under 1418Young Offenders Act 1993, s5; Common law doli incapax; Young Offenders Act 1993, s4;
TasmaniaUnder 1010 to under 1418Criminal Code Act 1924, s18(1);

Criminal Code Act 1924, s18(2); Youth Justice Act 1997, s3

VictoriaUnder 1010 to under 1418Children Youth and Families Act 2005, s344
Western AustraliaUnder 1010 to under 1418Criminal Code Act Compilation Act 1913, s29;

Criminal Code Act Compilation Act 1913, s29; Young Offenders Act 1994, s3

See also

References
  1. Australian Institute of Criminology, The age of criminal responsibility, September 2005 (Canberra). Accessed online at https://aic.gov.au/publications/cfi/cfi106
  2. R v CRH (Unreported, NSW Court of Criminal Appeal, Smart, Hidden and Newman JJ, 18 December 1996); C (A Minor) v DPP [1995] 2 WLR 383, 401-2; BP v R, SW v R [2006] NSWCCA 172 (1 June 2006).
  3. "Experts back call to raise age of criminal responsibility to 16". SBS Australia. 22 November 2018.
  4. "Review of the age of criminal responsibility (2020)". Australian Human Rights Commission. 26 February 2020. Retrieved 6 August 2020. PDF
  5. "Council of Attorneys-General – Age of Criminal Responsibility Working Group Review". Law Council of Australia. 29 July 2020. Retrieved 6 August 2020. PDF
  6. "AMA calls for age of criminal responsibility to be raised to 14 years of age". Australian Medical Association. 25 March 2019. Retrieved 12 April 2019.
  7. Zwartz, Henry; Dunstan, Joseph (26 July 2020). "The push to raise Australia's minimum age of criminal responsibility". ABC News. Retrieved 6 August 2020.
  8. Creek, Simon; Nims, Siobhan (30 July 2020). "Quick Facts: The age of criminal responsibility in Australia and youth incarceration". Welcome to Mondaq. Retrieved 6 August 2020.
  9. Cunneen, Chris (22 July 2020). "Ten-year-olds do not belong in detention. Why Australia must raise the age of criminal responsibility". The Conversation. Retrieved 6 August 2020.
  10. "age of criminal responsibility". RACP. Retrieved 6 August 2020.
  11. Ralston, Nick; Whitbourn, Michaela (27 July 2020). "Age of criminal responsibility to remain at 10 until at least 2021". The Sydney Morning Herald. Retrieved 6 August 2020.
  12. Richards, Stephanie (28 July 2020). "Move to lift criminal age on hold as SA waits for national decision". InDaily. Retrieved 6 August 2020.
  13. Keoghan, Sarah; Whitbourn, Michaela (26 July 2020). "Council of Attorney's-General to urge change of age for criminal responsibility". The Sydney Morning Herald. Retrieved 6 August 2020.
  14. "National Agreement on Closing the Gap" (PDF). July 2020. Retrieved 4 August 2020. Cite journal requires |journal= (help)
  15. York, Keva (20 February 2020). "In My Blood It Runs documentary exposes how education system is failing Aboriginal children". ABC News. Retrieved 6 August 2020.
  16. "Archived copy" (PDF). Archived from the original (PDF) on 25 March 2012. Retrieved 12 October 2012.CS1 maint: archived copy as title (link)

Further reading
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