Explainer: Raising the age
What is the age of criminal responsibility?
Across Australia the age of criminal responsibility is set at 10 years. The age of criminal responsibility is the age a child is considered capable of understanding they have done something wrong and can be dealt with in the criminal justice system. The age of 10 years is the minimum age set by our Governments that allow a child to be charged, brought before a court, sentenced and imprisoned. This minimum age is the same for all Australian states and territories reflected in the primary piece of legislation for criminal offences and responsibility.[1] Such a low age is in breach of human rights standards and puts Australia out of step with the rest of the world, where the median age is 14 years.[2]
All Australian Governments should raise the age of criminal responsibility because it is the right thing to do, because it is evidence-based, and because the recommendations of the NT Royal Commission present a rare opportunity to embrace this change.
Why should governments raise the age?
The criminalisation of young children is a nationwide problem. Approximately 600 children below the age of 14 are locked away in youth jails each year across Australia.[3] Aboriginal and Torres Strait Islander children are over-imprisoned, making up almost 70 per cent of the young children in youth jails.[4] The most recent available data shows that in one year, approximately 8,900 children aged 10 to 13 were either charged or dealt with by alternative action including cautions or diversion[5] and approximately 2,800 children aged 10 to 13 had charges finalised in the Children’s Court.[6]
It is often the most vulnerable and disadvantaged children who come to the attention of the justice system at a young age.[7] Recent research found that early contact with the justice system increases the likelihood of poorer outcomes including being held on remand (in custody prior to trial or sentencing) rather than bailed, further offending and potential life-long involvement with the justice system.[8] On the other hand, the Northern Territory Royal Commission identified that the vast majority of children who are dealt with outside of the formal criminal justice system do not reoffend.[9]
There has been a chorus of calls both nationally and internationally for Australia to raise the age of criminal responsibility, including from expert United Nations bodies, medical bodies, academics, Aboriginal and Torres Strait Islander and human rights organisations and most recently, the Northern Territory Royal Commission.[10] Raising the minimum age should be done in conjunction with measures to ensure children receive appropriate community support directed at addressing risk factors.
The reasons for reforming the current minimum age of criminal responsibility are clear.
First, medical science is not consistent with the current laws on childhood capacity. Contemporary research shows that children’s brains are still developing throughout these formative years where they have limited capacity for reflection before action.[11] Children in grades four, five and six are not at a cognitive level of development where they are able to fully appreciate the criminal nature of their actions or the life-long consequences of being labelled a criminal.
Second, social science affirms the dangers of early contact. 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.[13] Studies show that the younger a child has their first contact with the criminal justice system, the higher the chance of future offending.[14] Children who are forced into contact with the criminal justice system at a young age are also less likely to complete their education and find employment.
Third, human rights law is clear. The United Nations Committee on the Rights of the Child has consistently said that countries should be working towards a minimum age of 14 years or older.[15] Australia has been repeatedly criticised by the United Nations, most recently by the Committee on the Elimination of Racial Discrimination, for failing to reform the current minimum age.
How the laws should be changed
The following provisions pertaining to each of the state, territory and Commonwealth acts should be amended to read that ‘a child under 14 years is not criminally responsible for an offence’:
Commonwealth- Crimes Act 1914, s 4M; Criminal Code Act 1995, s 7.1;
Australian Capital Territory- Criminal Code 2002, s 25;
Northern Territory- Criminal Code, s 38(1) & 42AP;
New South Wales- Children (Criminal Proceedings) Act 1987, s 5;
Victoria- Children, Youth and Families Act 2005, s 344;
South Australia- Young Offenders Act 1993, s 5;
Western Australia- Criminal Code Act Compilation Act 1913, s 29;
Queensland- Criminal Code Act 1899, s 29(1);
Tasmania- Criminal Code 1924, s 18(1).
These amendments will effectively deem children under the age of 14 years incapable of criminal responsibility and prevent young children from being dealt with in the criminal justice system.
This explainer is not legal advice
The contents of this publication do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as legal advice. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.
[1] Commonwealth- Crimes Act 1914, s 4M; Criminal Code Act 1995, s 7.1; Australian Capital Territory- Criminal Code 2002, s 25; Northern Territory- Criminal Code, s 38(1) & 42AP; New South Wales- Children (Criminal Proceedings) Act 1987, s 5; Victoria- Children, Youth and Families Act 2005, s 344; South Australia- Young Offenders Act 1993, s 5; Western Australia- Criminal Code Act Compilation Act 1913, s 29; Queensland- Criminal Code Act 1899, s 29(1); Tasmania- Criminal Code 1924, s 18(1).
[2] Australian Human Rights Commission, National Children’s Commissioner, Children’s Rights Report 2016, 187.
[3] Australian Institute of Health and Welfare (AIHW) (2017) Youth Justice Supervision in Australia 2015-16, Bulletin 138, supplementary data table S78b, AIHW, Canberra.
[4] Ibid.
[5] Australian Bureau of Statistics (ABS) (2017), Recorded Crime - Offenders, 2016-17, youth Offenders, Supplementary Data Cube, Table 21, Cat No 4519.0, ABS, Canberra.
[6] Australian Bureau of Statistics (2013), Criminal Courts Australia 2011-12, Children’s Court, Supplementary Data Cube, Table 7, Cat No 4513.0, ABS, Canberra.
[7] Australian Institute of Health and Welfare 2016. Young people in child protection and under youth justice supervision 2014–15. Data linkage series no. 22. Cat. no. CSI 24. Canberra: AIHW, 17: ‘Those who were younger at their first youth justice supervision were more likely to also be in child protection in 2014-15 than those who were older at their first youth justice supervision. Three in five (60%) of those aged 10 at their first youth justice supervision were also in child protection, compared with 9.4% of those aged 17. See further Jesuit Social Services, Too much too Young: Raise the age of criminal responsibility to 12, October 2015, 3.
[8] Jesuit Social Services, Thinking Outside, Alternatives to Remand for Children (Research Report) (2013), 38-41. See further the Sentencing Advisory Council, Reoffending by Children and Young People in Victoria (2016), 6.
[9] Commonwealth, Royal Commission into the Protection and Detention of Children in the Northern Territory, Final Report (November 2017), Volume 1, Chapter 27, p. 413.
[10] Commonwealth, Royal Commission into the Protection and Detention of Children in the Northern Territory, Findings and Recommendations (November 2017), Recommendation 27.1.
[11] Judge Andrew Becroft, ‘From Little Things, Big Things Grow’ Emerging Youth Justice Themes in the South Pacific, 5 referring to Sir Peter Gluckman Improving the Transition: Reducing Social and Psychological Morbidity During Adolescence (Wellington, Office of the Prime Minister’s Science Advisory Committee, 2011), p 24. See also Kelly Richards, ‘What makes juvenile offenders different from adult offenders? Trends & Issues in crime and criminal justice’ (2011), 4. See further Laurence Steinberg ‘Risk Taking in Adolescence: New Perspectives from Brain and Behavioural Science” (2007) 16 Current Directions in Psychological Science 55, 56.
[12] Ibid.
[13] Australian Institute of Health and Welfare 2016. Young people returning to sentenced youth justice supervision 2014–15. Juvenile justice series no. 20. Cat. no. JUV 84. Canberra: AIHW: The younger a person was at the start of their first supervised sentence, the more likely they were to return to sentenced supervision. For those whose first supervised sentenced was community-based, 90% of those aged 10-12 at the start of this sentence returned to sentenced supervision, compared with 23% of those aged 16 and just 3% of those aged 17. More staggering were those sentenced to detention as their first supervised sentence, all (100%) those aged 10-12 at the start of this sentence returned to some type of sentenced supervision before they turned 18. This rate of return decreased with age, to around 80% of those 14 and 15, 56% of those 16 and 17% of those 17.
[14] Ibid and AIHW (2013) Young People Aged 10 – 14 in the Youth Justice System, 2011-2012, AIHW, Canberra.
[15] Committee on the Rights of the Child, General Comment No. 10 Children’s rights in juvenile justice, 44th sess, UN Doc CRC/C/ GC/10 (25 April 2007), paras 32–33.