Raising the age of criminal responsibility
In Australia young people are deemed to have criminal responsibility if they are aged 10 or over. Young people aged between 10 and 14 are given the presumption of doli incapax, meaning that they cannot be held criminally responsible unless it can be proved beyond reasonable doubt that the young person knew that their conduct was wrong (Child Rights International Network 2020).
The UN Committee on the Rights of the Child (2019) recently issued an update to the International Standards for the Minimum Age of Criminal Responsibility. In paragraph 22 of its ‘General comment no. 24 (2019) on children’s rights in juvenile justice’, the Committee deemed the previously recommended age of criminal responsibility of 12 years to be too low.
The Committee now encourages state parties to ‘take note of recent scientific findings, and to increase their minimum age to at least 14 years’.
The recommendation to increase the minimum age of criminal responsibility reflects current research in child development and neuroscience which provides evidence that the capacity for abstract reasoning is not fully developed in children aged 12 and 13 (UN Committee on the Rights of the Child 2019).
In Australia, the Meeting of Attorneys-General (MAG) reviewed Australia’s age of criminal responsibility. MAG noted that the Australian Capital Territory and Northern Territory have committed to raising the minimum age of criminal responsibility, and states have supported the development of proposals to raise the age, having regard to any carve outs, timing and discussion of implementation requirements (MAG 2022). This followed on from the Royal Commission into the Protection and Detention of Children in the Northern Territory (Royal Commission, Australian Government 2017), which resulted in recommendations for Australia to:
- raise the minimum age of criminal responsibility from 10 to 12
- keep young people aged 14 and under out of detention unless they have committed a serious crime or pose a serious risk to the community.
In October 2021, the Australian Capital Territory committed to raising the age of criminal responsibility to 14; it is currently the only jurisdiction to do so. Legislation is expected to be introduced in 2022.
In June 2022, Tasmania committed to raising the age of criminal detention from 10 to 14 years old. This change is expected to be implemented at the end of 2024.