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The Victorian government has recently announced it will raise the age of criminal responsibility to either 12 or 14 years old in the state.

Similar moves are being considered in various other jurisdictions, with the Northern Territory and South Australia also seeming likely to “raise the age” in 2023.

The national campaign to raise the age of criminal responsibility can sometimes be confusing, and may leave some people concerned about what happens to children who exhibit anti-social behaviour.

Here’s what you need to know.

The Age of Criminal Responsibility in Australia

Campaigns to raise the age are all about the minimum age in which a child can be charged with a criminal offence.

The common law doctrine of Doli incapax states that children under a certain age are “incapable of wrong” lacking the intent or malice required to commit a crime.

Currently, the minimum age of criminal responsibility in all Australian jurisdictions is 10 years old. This mean that a child under the age of 10 cannot be criminally responsible for committing a crime.

All States and Territories also have a rebuttable presumption that children aged between 10 and 14 years old are incapable of committing crimes. Unlike the strict minimum, prosecutors can make the case that a child between the ages of 10 and 14 years old does have the capacity to understand right from wrong and should be held criminally culpable.

Raising the age to 14 years old would mean that this presumption is no longer rebuttable and children under this age cannot be charged with a crime.

Why Raise the Age?

The case for raising the age of criminal responsibility is largely made on the basis that children under the age of 14 years old are not capable of fully understanding their actions, and are largely shaped by their environment.

Children who commit crimes under the age of 14 generally have complex backgrounds involving trauma, poverty, insecure housing, poor mental health or cognitive disability. Unlike adult offenders, it’s argued that children should not be held culpable because of their life circumstances.

This distinction is recognised under international law. The United Nations Committee on the Rights of the Child states that the minimum age of criminal responsibility should be at least 14 years, with no exceptions for any offences.

Another key argument in favour of raising the age is the glaring fact that a significant proportion of children charged in Australia are Aboriginal or Torres Strait Islander young people.

Aboriginal or Torres Strait Islander young people aged 10–17 are 24 times more likely to be in detention than non-Indigenous young people. In the Northern Territory, at least 94 per cent of detainees in juvenile detention are Aboriginal or Torres Strait Islander.

Finally, being charged with a crime doesn’t appear to reduce the risk of re-offending by young people.

Early involvement with the youth justice system significantly increases the likelihood of reoffending for children, including reoffending as an adult. Conditions in youth detention have been argued re-traumatise children, compound mental illness, and further disrupt their development making reoffending more likely.

The #RaiseTheAge campaign is supported by a number of high-profile organisations including the National Aboriginal and Torres Strait Islander Legal Services, Australian Indigenous Doctors Association, Change the Record, Human Rights Law Centre, Law Council of Australia, Amnesty International Australia, Australian Medical Association, Royal Australasian College of Physicians and Public Health Association of Australia. 

What Happens to Dangerous Children?

It should be noted that it is very rare for children aged 10 to 14 to commit serious crimes, particularly violent offences. However, some may wonder what happens if a child exhibits dangerous behaviour under the age of 14 once we’ve raised the age of criminal responsibility?

The Law Council of Australia has provided a comprehensive position paper noting the best way to respond to children under the minimum age of criminal responsibility.

The paper notes a “tiered” approach to children who behave anti-socially, ranging from minor offenders to very serious violent behaviour.

On the more minor end of the spectrum the Council argues that greater family support should be provided to ensure that children are adequately supervised and suitable mental and physical health services are provided. Minor anti-social behaviour by young people is relatively common, and there’s strong evidence that a formal warning or caution by a person is a position of authority can effectively change behaviour.

For more moderate level offending, a decision-making body should be involved such as a therapeutic-aligned court system (Eg. Youth Koori Court) which can look at the circumstances of the child and provide a number of expert recommendations for care. This will likely involve the monitoring of intensive “wrap around” services for the child to deal with the underlying causes of offending.

At the most serious level of offending, including rare situations where a child has killed, tortured or seriously sexually abused others, the Council notes the possibility of mandated residential supervision and psychiatric care. However, care must be taken that this kind of mandated treatment doesn’t become youth detention by another name.

It should also be noted that at all stages where a child is acting anti-socially, child protection authorities are likely to be involved to determine whether a child’s home life is contributing to their behaviour.

As can be seen, raising the age of criminal responsibility is not a “hands off” approach to anti-social behaviour by children, but simply a shift towards more therapeutically oriented, rather than punitive, responses.

AUTHOR Criminal Defence Lawyers Australia

Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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