Criminal Law

By Satomi Hamon


How young is too young for crime?

Children are not held criminally responsible for their actions until they have reached a certain age. In all Australian jurisdictions, the criminal age of responsibility applies to anyone 10 years of age or older.  Children as young as 10 years old can be charged, brought before the courts, sentenced and imprisoned.

In every Australian State and Territory there is also a rebuttable presumption known as doli incapax, that a child between ages 10 and 14 is incapable of committing a criminal act. This means that the prosecution, in addition to proving the elements of the offence, must rebut a presumption and prove that the child (if aged between 10 and 14) knew that what he or she did was “seriously wrong” in the criminal sense, as opposed to just naughty or mischievous.

On 17 November 2017, the Royal Commission into the Protection and Detention of Children in the Northern Territory made the landmark recommendation to raise the age of criminal responsibility from 10 to 12 years, as ‘not only would this more accurately reflect modern understanding of brain development, it would ensure that the number of children brought before the courts is reduced.’

The United Nations has argued the doctrine of doli incapax has been applied inconsistently and fails to provide adequate protection for young children. It is reported around 600 children under the age of 14 are imprisoned annually within Australia, 70 per cent of which identify as Aboriginal and Torres Strait Islander.

UNICEF Australia believes the age of 14 is the most common international standard to mark the emotional, mental, and intellectual maturity of young offenders. Australia has been repeatedly rebuked by organisations such as the United Nations and Amnesty International for maintaining such a low age of criminal responsibility.

Experts suggest that the brain’s prefrontal cortex, which governs skills such as impulse control and decision-making doesn’t develop properly until adolescence, and that children under the age of 14 do not fully understand the severity of their actions or have full control of their behaviour.

Wayne Muir, Co-Chair of the National Aboriginal and Torres Strait Islander Legal Services, said that youth justice systems are failing all of us and must be overhauled and replaced with a system that is therapeutically and culturally responsive:

“Children are being labelled criminals when all of our efforts should be focussed on keeping children safe and supported within their communities. Removing children as young as ten from their families and forcing them into the criminal justice system takes away their basic rights as children to learn, grow and thrive.”

According to The Royal Australasian College of Physicians [1], incarcerated adolescents are more likely to experience poorer health and life outcomes and disproportionately high levels of disadvantage over that of the general population.

In light of the overwhelming calls to lift the age of criminal responsibility it is high time all States and Territories follow the advice of the experts and enact immediate reform in this area.

[1] The Royal Australasian College of Physicians, “The health and well-being of incarcerated adolescents”. 2011 Sydney