Criminal Law

By Peter Woodhouse


Government’s promise to increase the age of criminal responsibility – the devil is in the detail

The ACT Government has been banging on about their commitment to raise the age of criminal responsibility to 14 for all offences for at least the last couple of years.  Those with legal knowledge have generally welcomed that position, certainly all criminal defence lawyers have.

To think that the ACT Government would take such a reasonable approach, particularly given the Law-and-Order debate that has been swirling in the last couple of months, appeared too good to be true.  It seems it may well have been.

Recently, the ACT Government has released a position paper which outlines what they are hoping to achieve, and it’s a bit different then what they were spruiking previously.  A bill is expected to be presented to the Legislative Assembly next year, which would immediately raise the age of criminal responsibility to 12 years and two years later would rise to 14 years. There is no explanation for the two-step approach, but it appears that has been done to appease those in the Government who are reluctant to embrace the change.  The real clanger though is that the Government has now revealed an intended exception for serious crimes for 12 and 13-year-olds.

‘Serious crimes’ are not defined (yet), but the Attorney-General, Shane Rattenbury, used murder and sexual assaults as examples.  He said the reason for the exception for serious offences was so that “the community feels there is accountability there”.  In other words, he is pre-emptively bowing to the community pressure he expects would follow if there was an across the board increase to 14 years.  How disheartening.

The ACT Government position is at odds with the United Nations which has voiced the opinion that the age of criminal responsibility should be 14 and there should not be any exceptions for any specific crime.

In a recent Canberra Times article, a representative of the ACT Council of Social Services expressed concerns that the ACT Government was exploring exceptions, noting: “Medical and scientific consensus is that people under the age of 14 do not have the developmental capacity to be held criminally responsible and that detention increases their odds of reoffending.”  She also said: “If we agree that children cannot be held responsible for minor offences, we must agree that that are not criminally responsible for more serious offences.”  The logic in that position is self-evident.

An understanding of the current law in relation to the age of criminal responsibility is helpful in assessing the absurdity of the ACT Government’s position.  For centuries, a feature of the common law has included the legal doctrine of doli incapax.  Literally translated it means ‘incapable of evil’ or ‘incapable of deceit’.  Practically it means that a child aged between 10 and 14 is presumed not to possess the necessary knowledge or cognitive development to be capable of committing a criminal offence.  In other words, they are not capable of possessing the mental element that forms part of an offence itself.  That presumption was rebuttable if there was sufficient evidence that the child knew their conduct was criminally wrong as opposed to naughty, for example if the child was high functioning and close to the age of 14.

One question that the ACT Government has not answered, and in my view one that demands an immediate answer, is how do they intend for the proposed exception for serious offences to operate along side the doctrine of doli incapax or is it their intention to legislate that principle away?  If it’s the latter, it means that 12-to-14-year-olds in the ACT will be significantly worse off than they currently are.  If it’s the former, you have to ask why bother with the exception at all?

The cynical view is that the ACT Government is afraid of implementing a reform that is progressive and backed by the science on a child’s neurological development because they are worried about being criticised for being ‘soft on crime’.  You cannot avoid noticing that the late exclusion for serious offences in the raising of the age of criminal responsibility comes at a time when the Government is being (unjustly) hammered for light sentences and perceived bail problems by a few loud voices in the community.  If that is the reason for this exception for serious offences, it is pretty weak position for the ACT Government to take.  Once upon a time the ACT Government was progressive on such matters.  That is how we came to have a Human Rights Act.  Sadly, it seems those days are behind us.

Aulich Criminal Law are criminal law experts and we have lawyers with an abundance of experience in defending children in serious criminal matters, where the outcomes are incredibly important and can irreparably impact your children’s future, including employability.  If your child is facing a serious criminal allegation, you should contact one of the experienced criminal lawyers at Aulich immediately on 6279 4222.