Raising the Minimum Age of Criminal Responsibility

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Maya GeorgeThe article Raising the Minimum Age of Criminal Responsibility is written by Maya George, Lawyer, Doogue + George Defence Lawyers.

Maya was a Judge's associate at the County Court's Criminal Division prior to joining Doogue + George. Before this she was also a Legal Policy Officer in the Chief Magistrate's Chambers where she gained much experience on the operational requirements of the Magistrates’ Courts.

With a Bachelor of Arts (major in human rights) and a Bachelor of Laws from Monash University, Maya graduated with first class honours. She looks forward to working with clients from a variety of backgrounds particularly members of the LGBTQIA+ community.

Child Within the Current Age of Criminal ResponsibilityAcross Australia, children as young as 10 can be held criminally responsible for their actions.

There has been much recent discussion about the #raisetheage campaign, with many people working in medicine and the law calling for the age of criminal responsibility to be raised to 14 years old. Australia’s federal, state, and territory attorneys-general have struggled to come to an agreement on the issue, with the Victorian government indicating that the state will seek reform without national consensus.

All of this raises many questions – but the answer to most of them is that the age of criminal responsibility in Australia is far too low, and raising the age will have an immensely positive impact on Australia’s most vulnerable children.

Maturity and Criminal Responsibility

The United Nations Committee on the Rights of the Child asserts that the appropriate age for criminal responsibility is 14, a view that the Australian Medical Association, and the Law Council of Australia, support. Young people under 14 “are undergoing significant growth and development”,1 and do not have the requisite cognitive skills or maturity to be criminally responsible.

This isn’t a radical view. A 2021 survey showed that over two thirds of people mistakenly thought that children must be 14 or above to be held criminally responsible in Australia. Only 10% of people correctly identified the threshold as 10 years old, and under a third of respondents thought this should continue to be the age of criminal responsibility.

But don’t children under 14 already have to be proven to be criminally responsible? Why raise the age to 14 when this test already exists?

The principle of doli incapax means that children under 14 are presumed to be incapable of criminal conduct, which the prosecution can rebut by showing that the child knew their conduct was wrong. There are practical difficulties with applying this principle, and delays in dealing with the presumption can mean children spend unnecessary time in custody before they can be found to be lacking the requisite capacity.

Poorer Outcomes for Children – and the Adults They Become

Logically, the underlying purpose of dealing with young people as offenders must be to prevent them from engaging in this conduct again, either as children or as adults. Yet, research shows that children who have contact with the criminal justice system are more likely to offend again, and the earlier that contact, the higher their chances of reoffending. On the other hand, nations with higher ages of criminal responsibility report lower rates of offending in young people at the older end of the spectrum, such as 17-year-olds.

Beyond recidivism rates, there are broader consequences for children who become involved in the legal process. Detaining young people can have significant impacts on many aspects of their lives, including their employment prospects, their capacity for education, and their health.

Over-representation of First Nations Children in the Criminal Justice System

Of the children imprisoned in Australia in 2019, 70% of those aged under 14 were First Nations children. Aboriginal and Torres Strait Islander children are also 15 times more likely than non-Indigenous children to be under supervision in the community. Nearly 80% of First Nations children who come before the Courts have a criminal record, a number which, for non-Indigenous children, sits at 50%.

In light of such statistics, addressing the over-representation, and over-incarceration, of Aboriginal and Torres Strait Islander children should be a key consideration in deciding whether to raise the age of criminal responsibility.

On their own, statistics like the above show the disproportionate rates at which Aboriginal and Torres Strait Islander children come into contact with the criminal justice system. The significance of the problem is compounded by the continuing impacts of colonisation, which mean that some Aboriginal and Torres Strait Islander children live with more significant disadvantage than non-Indigenous children. As a result, their experience in custody can be even more damaging. Involvement with the criminal justice system can create distance between First Nations children and their country and culture – the very connections that improve health and emotional wellbeing, and that have been acknowledged by the Court of Appeal to play a role in rehabilitation.

Aside from all the evidence as to the risks of exposing any child to the criminal justice system, as the administrators of a colonial justice system, and in the context of over 200 years of dispossession and traumatisation, our governments have an obligation to modify the way our legal system works to reduce the harms done to Aboriginal and Torres Strait Islander communities. Raising the age of criminal responsibility is one reform which will have an immediate positive impact.

But What About Punishment?

Many people would agree that most children should never spend time in prison. At the same time, some may worry that if the age of criminal responsibility is raised to 14, children aged between 10 and 13 who commit very serious offences will get off scot-free. With no legal process to go through, they won’t be punished for their actions, and they won’t suffer the consequences. So why raise the age?

First, only a small number of young people aged 10-17 end up in trouble with the law, and an even smaller number of those children are aged under 14. On top of this, most criminal conduct committed by children is not violent.

Secondly, as discussed above, young children lack important cognitive skills, including reflective and consequential thinking, which casts doubt on how effective punishment can actually be.

Thirdly – and perhaps most importantly – viewing “punishment” as the solution to the problem of young people engaging in unacceptable behaviour is fundamentally flawed. As outlined above, punitive outcomes are only likely to make things worse. The reality is that when young people engage in conduct that the legal system views as serious criminal offending, it is almost certain that they are dealing with significant disadvantage, or something has gone seriously wrong in their lives. The real goal should be addressing those underlying problems, for the benefit of the child, as well as the broader community.

There are already countless therapeutic programs and services – some of them custodial – across Victoria and Australia that focus on diverting children away from criminal behaviour. It’s true that these sorts of diversionary or restorative outcomes can be facilitated through the criminal justice system – but it’s not necessary. If the age is raised, children who engage in socially unacceptable behaviour can be connected with these programs without the involvement of the criminal Courts. Of course, that’s not to say that there would be no intervention. Other services, like child protection, would necessarily become involved – but not the criminal justice system. This means that children could engage with the services they need without the added risks discussed above, like a heightened chance of reoffending.

Justice Re-investment

Finally, raising the age of criminal responsibility gives us the opportunity to prioritise justice re-investment. This means that the funds currently spent prosecuting and imprisoning children aged under 14 can be redirected to addressing the underlying causes of children engaging in these behaviours. That might look like early intervention services to provide support to children who are at risk of engaging in harmful behaviours; better access to psychological, psychiatric and neuropsychological services for children who need them; or therapeutic programs for children who exhibit problem behaviour. Ultimately, justice re-investment means a reduction in socially unacceptable behaviour, and better outcomes for vulnerable children.

By introducing children under 14 to the criminal justice system, we are ignoring the reasons why they find themselves there in the first place. As Leigh Haysom acknowledges:

The custodial solution is made acceptable by focusing blame and attention downstream on the criminal act, with the child as an offender. This diverts attention from the upstream psychosocial issues, excuses our social obligation to address these disparities, and allows for the enforceable management of children well out of the public’s sight and mind.2

The evidence is clear: children under the age of 14 are not proper vehicles for the application of the criminal law. Children should be living their lives as children – with their families, in their communities, and with the support and resources they need to live happy lives.

[1] https://australiainstitute.org.au/wp-content/uploads/2020/12/P952-Raising-the-age-of-criminal-responsibility-Web.pdf
[2] https://onlinelibrary.wiley.com/doi/full/10.1111/jpc.16059

Date Published: 22 March 2023

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