History of age of criminal responsibility Australia

The “raise the age” campaign seeks to raise the age of criminal responsibility in Australia so that a person under the age of 14 years isn’t criminally responsible for any act or omission they commit.

Such a move has been mirrored by proposed legislative bills in various states.

But is raising the age of criminal responsibility justified, and what are the implications if we do?

The current state of legislation in Australia

Currently in Australia, the Commonwealth and all states and territories set the minimum age of criminal responsibility at ten.

Separate to this, the “doli incapax” presumption is available in all states and territories. This means a child aged 10-13 isn’t criminally responsible for any offence, unless it can be shown the child had the capacity to know they ought not to commit the offence. This places the onus of proof with the prosecution. So if they charge a 12-year-old, they need to show the child knew their actions were seriously wrong, rather than just naughty or mischievous.

There has been some criticism of this presumption – that it’s complex and places a high demand on resources. Despite this, case law is clear on how it should be interpreted. In terms of resource demand, that does not indicate the presumption does not work, it merely points to a separate issue in the operation of the courts.

At a November 2021 meeting, state attorneys-general from around Australia supported the development of a proposal to increase the minimum age of criminal responsibility from ten to 12. But this hasn’t yet been enacted anywhere.

Bills have been introduced in the New South Wales and Queensland parliaments to raise the age of responsibility to 14, but these were not supported.

Generally the arguments to support raising the age are grounded in not having young children in custody. But incarceration of youth offenders is a sentencing outcome – it’s a separate issue from whether the child is aware that what they did is wrong and as such, is criminally responsible.

The raise the age campaign states:

It’s time for the federal, state and territory governments to do what’s right and change the laws to raise the age, so children aged ten to 13 years are not sent to prison.

But what is the reality of children in detention in Australia?

Since 2010, the number of custodial sentences issued by Children’s Courts have declined markedly.

2021 Census data indicates there are 1,588,051 children aged 10-14 in Australia. In 2020-21, the Australian Institute of Health and Welfare reported there were 444 children aged 10-13 in detention (this includes unsentenced and sentenced detention) for the year. This was down from 499 in 2019-20.

Data from the Queensland Police Service indicated the average daily number of children aged 10-13 in police watch-houses was nine in 2019, and five both in 2020 and 2021.

The Australian Bureau of Statistics reported that children aged 10-14 accounted for 16% of Children Court matters finalised with a guilty outcome in 2020-21. Of those defendants, 95% received a non-custodial sentence, meaning they weren’t imprisoned. Only 73 defendants, or 2%, received a custodial sentence, whereby they were sent to a correctional institution such as a prison or youth detention centre.

Victorian Sentencing Council data indicates that custodial sentences for youth offenders were at their lowest level since 2004-05, with just 124 orders in 2020-21.

Queensland Sentencing Advisory Council data showed that between 2005-06 and 2018-19, detention orders accounted for just 2.9% of penalties for youth offenders in Magistrates Court and 17.6% in the higher courts (which hear the more serious matters).

The reality is that the number of children held in custody is exceedingly small.

The impact on victims of crime

Where do victims of crime fit into such a proposal to raise the age?

Instances such as the murder of James Bulger in 1993, for example, would go unpunished. Bulger, who was two years old, was abducted by two ten-year-olds from a shopping centre in the United Kingdom. They then tortured him over several hours before they crushed his skull, inflicting 42 injuries in total. Both were convicted of murder and served eight years in prison.

From a victim’s perspective, it’s difficult to argue there should be no consequences for the perpetrators’ actions. Indeed, the impact on the victim is one of the principles to be considered when sentencing children in Queensland.

If the age of responsibility is raised, what capacity will there be to properly and effectively deal with young people who otherwise would be committing offences? How would victims be empowered under such a regime and community safety be ensured?

Raising the age won’t address the causal effects of crime

As Queensland Attorney-General Shannon Fentiman stated during debate for the proposed bill to raise the age of criminal responsibility in that state:

Simply changing the criminal law does not reflect the complexity underlying youth offending and why children as young as ten years old commit these offences.

These complex issues include substance abuse, being affected by domestic violence, mental health, being disengaged from education, a lack of suitable accommodation and poor parenting.

Addressing risk and protective factors at the individual, family, social and community levels is crucial in addressing offending behaviour.

Many of these issues were present in the case of an 11-year-old boy found guilty of the manslaughter of Perth man Patrick Slater, who was stabbed to death with a screwdriver in 2016.

He was jailed for four years. The boy was kept in custody prior to his sentencing for almost two years because of an inability to find a responsible person to care for him.

Raising the age will not stop such a crime being committed, nor the causes of it – it just means no one will be held accountable.

We should not be raising the age of criminal responsibility

Raising the age is a response that removes responsibility for poor behaviour, but doesn’t necessarily address any underlying causes of youth crime. Addressing these is what may actually assist young people in not offending.

How we punish young people who transgress is a separate issue. Understanding the consequences of your actions is also a separate issue to knowing if what you did was right or wrong.

We must ensure we don’t weaken our criminal justice system in a way that will ultimately fail our young people by creating a generation with no sense of personal responsibility.

Factors relating to the age of criminal responsibility in Australia, currently 10 years old

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, although As of October 2022[update] some jurisdictions have made moves towards raising the age to 12 or 14.

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. In 2019, the Council of Attorneys-General Age of Criminal Responsibility Working Group was 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 was needed to be done on alternative forms of punishment before they could make their recommendations, and in late 2021 the Council of Attorneys-General failed to reach a national consensus.

Background

Main article: Age of criminal responsibility

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]

Statistics

According to a 2018 SBS article, around 600 children under 14 are locked up in Australian prisons each year.[3]

On an average night in June 2019, there were 949 young people imprisoned in Australia. Of these:[4]

• 90% were male;
• 83% were aged 10–17 (the remainder 18–20);
• 63% were unsentenced;
• 53% were Aboriginal and/or Torres Strait Islander youth.

In the year ending 30 June 2020, there were almost 600 children aged 10 to 13 in detention in Australia.[4]

From June 2015 to 2019, the Northern Territory had the highest rate of young people in detention on an average night.[4]

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.[5][6]

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:[7]

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, then Attorney-General of Australia, Christian Porter, was of the opinion that the current system was working well.[8]

In the year ending 30 June 2020, there were almost 600 children aged 10 to 13 in detention in Australia.[4] 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.[5] The Law Council of Australia submitted its report on 2 March 2020.[6] However in 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]

By late 2021 the Council of Attorneys-General had failed to reach a national consensus on the issue.[13]

As of 2022[update] the debate continues. Criminologist Terry Goldsworthy points out that the sentencing issue is separate from the age of criminal responsibility, and that the number of children held in custody is "exceedingly small", with custodial sentences having declined significantly since 2010. He also argues that the victims of crime (citing the James Bolger case in the UK) need to be taken into consideration.[14] Those concerned with the health and welfare of the children concerned say that incarcerating them can cause "irreparable harm", especially "those with complex neurodevelopmental and mental health needs, trauma, substance misuse and social disadvantage, [who] are overly represented in the youth justice system.[15]

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][16] 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.[17]

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.[8][18]

Changes

In August 2020 the Legislative Assembly of the ACT voted to increase the age of criminal responsibility to 14 in line with UN standards,[19][15] a move welcomed by Indigenous advocates.[20] The support was in principle only.[21][22]

In October 2021 the Labor Party of Western Australia passed a motion at their state party conference to raise the age to 14.[23]

In March 2022, the Queensland Government rejected a bill to raise the age to 14, with a parliamentary committee recommending a continued national approach to increasing the age to 12.[24]

In June 2022 the Tasmanian Government announced that it would raise the minimum age of detention to 14, but with no change to the age of criminal responsibility.[25][15]

In July 2022, Greens MLC Robert Simms raised a bill in the South Australian Government to raise the age to 14, with Attorney-General and Aboriginal Affairs Minister Kyam Maher taking much interest in the issue.[13]

On 13 October 2022 legislation was introduced to the Northern Territory Government to raise the age of criminal responsibility to 12 years of age. Instead of children of 10 and 11 entering the criminal justice system, they and their families would be referred to "intensive parenting programs", and the government would be expanding various schemes and family support services. The bill, introduced by Attorney-General Chansey Paech, was expected to pass, making NT the first Australian jurisdiction to raise the age above 10, although the commencement date was expected to be delayed until 2023.[26]

By jurisdiction

See also

• Indigenous Australians and crime#Children in detention
• Juvenile detention in the Northern Territory
• Punishment in Australia

Footnotes

1. ^ See also #Changes.

References

1. ^ Australian Institute of Criminology, The age of criminal responsibility, September 2005 (Canberra).
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. ^ a b "Experts back call to raise age of criminal responsibility to 16". SBS Australia. 22 November 2018.
4. ^ a b c d 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.
5. ^ a b "Review of the age of criminal responsibility (2020)". Australian Human Rights Commission. 26 February 2020. Retrieved 6 August 2020. PDF
6. ^ a b "Council of Attorneys-General – Age of Criminal Responsibility Working Group Review". Law Council of Australia. 29 July 2020. Retrieved 6 August 2020. PDF
7. ^ "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.
8. ^ a b Zwartz, Henry; Dunstan, Joseph (26 July 2020). "The push to raise Australia's minimum age of criminal responsibility". ABC News. Retrieved 6 August 2020.
9. ^ a b 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. ^ a b Richards, Stephanie (4 July 2022). "Greens push to lift SA's criminal age from 10". InDaily. Retrieved 13 October 2022.
14. ^ Goldsworthy, Terry (1 September 2022). "Why we should not rush to raise the age of criminal responsibility in Australia". The Conversation. Retrieved 13 October 2022.
15. ^ a b c Holland, Lorelle; Toombs, Maree (2 August 2022). "Raising the age of criminal responsibility is only a first step. First Nations kids need cultural solutions". The Conversation. Retrieved 13 October 2022.
16. ^ 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.
17. ^ National Agreement on Closing the Gap (PDF), July 2020, retrieved 4 August 2020
18. ^ 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.
19. ^ "Why Australia is facing calls to stop jailing 10-year-olds". BBC News. 21 August 2020. Retrieved 23 August 2020.
20. ^ Allam, Lorena (20 August 2020). "Australian Capital Territory votes to raise age of criminal responsibility from 10 to 14". the Guardian. Retrieved 23 August 2020.
21. ^ "Criminal responsibility age to be raised from 10 to 14 if ACT Labor re-elected, after Government endorses reform - ABC News". ABC (Australian Broadcasting Corporation). 20 August 2020. Retrieved 23 August 2020.
22. ^ Jenkins, Keira (20 August 2020). "ACT agrees to raise age of criminal responsibility". NITV. Retrieved 23 August 2020.
23. ^ Knowles, Rachael (5 October 2021). "WA Labor passes motion to raise the age". National Indigenous Times. Retrieved 13 October 2022.
24. ^ Dennien, Matt (15 March 2022). "Bill to raise age of criminal responsibility to 14 in Qld rejected by committee". Brisbane Times. Retrieved 13 October 2022.
25. ^ MacDonald, Lucy (8 June 2022). "Tasmania set to be first jurisdiction to raise minimum age of children in youth detention". ABC News. Retrieved 13 October 2022.
26. ^ Morgan, Thomas (13 October 2022). "NT government to introduce laws raising the age of criminal responsibility and reforming adult mandatory sentencing". ABC News. Retrieved 13 October 2022.
27. ^ "Archived copy" (PDF). Archived from the original (PDF) on 25 March 2012. Retrieved 12 October 2012.{{cite web}}: CS1 maint: archived copy as title (link)
28. ^ a b Criminal Code Act 1995 (series)
29. ^ Criminal Code Act Compilation Act 1913

Further reading

• Allam, Lorena (17 January 2021). "Australia's anguish: the Indigenous kids trapped behind bars". The Guardian. (One of a series)
• "R v LMW [1999] NSWSC 1109". New South Wales Caselaw. 17 November 1999.
• ""RP" v Ellis & Anor [2011] NSWSC 442". New South Wales Caselaw. 19 May 2011.

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