Australia’s minimum age of criminal responsibility is 10, despite the average age of criminal responsibility globally being 14.[1] How does this age set Australia apart in the way we criminalise young offenders?

**Source:** https://theconversation.com/naming-and-shaming-juvenile-offenders-or-open-justice-a-new-battle-over-press-freedom-118170

I CURRENT OPERATION OF THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY

In Australia, the law states that children under the age of 10 are not liable for any criminal wrongdoing. From the age of 10 to 13, there is a rebuttable presumption that children are incapable of committing criminal acts. This principle is called doli incapax and it is up to the prosecution to rebut this presumption. The prosecution must prove beyond reasonable doubt that the young offender knew that their conduct was ‘seriously wrong’ and not just ‘naughty’ or ‘mischievous’.[2] Conversely, children aged 14 and above are imposed with full criminal responsibility.

II POLICY ANALYSIS

Under this systematic framework, there is an average of 28 children enrolled in detention per day, primarily in age groups of 10-13.[3] Indigenous Australians comprise at least 60% of children being incarcerated within the age group of 10 to 14.[4] As a result of the imprisonment and prosecution of young children, these children are prone to suffering severe trauma, are unlikely to finish their schooling and have a higher risk of recidivism.[5] This is emphasised by the fact that 94% of incarcerated children between the age of 10 and 12 have received another prison sentence before they reach adulthood.[6] This is only a small insight into just how damaging it is for children to be in the harsh, unforgiving environment of prisons.

In addition to the ineffectiveness of the current minimum age of criminal responsibility in reducing recidivism, the law fails to acknowledge the wider literature and research dictating that children at the age of 10 do not possess the mental capacity to acknowledge the criminality in their acts. This is addressed in the ‘Raise the Age’ campaign, which advocates and pushes for legislative change in raising the minimum age of criminal responsibility.[7] As Tuomi and Moritz (2023) highlight, the lack of consideration of children’s psychological and mental development impedes on their ability to integrate into society.[8] Thereby, there is a gap in literature and the current law, whereby current legislation is inadequate in representing the reality of children’s mental development and their inability to understand criminality in their acts. A relevant comparison that can be drawn is, just because a child understands that damaging property is wrong, this does not qualify them to be capable of being a part of a jury in trials.[9] This notion echoes the consensus that a child’s understanding of ‘right and wrong’ does not automatically translate into an understanding of how ‘right and wrong’ apply in a criminal context.

The calls for reform from the international community have prompted national discussions. The Northern Territory has committed to increasing the age of criminal responsibility to 12 by August 2023 whilst both Victoria and Australian Capital Territory will increase the age to 12 before progressively moving towards 14. Tasmania has publicly committed to raising the MACR to 14 by 2024. However, the other states have yet to publicly commit to increasing the age of criminal responsibility. Thus, no single state has yet to successfully implement legislation raising the MACR.

III AlterNATIVE POLICY

An alternative policy that Australia can implement is to raise the minimum age of criminal responsibility to 14, which would account for the core weakness in the current policy; that the current laws are not an accurate reflection of the medical and scientific research regarding a child’s inability to understand criminal behaviour. Raising the age to 14 will reduce the number of children being criminalised, detained and incarcerated and can help break the perpetual cycle of recidivism. All children who commit criminal acts under the age of 14 should take upon a trauma-informed policy, whereby each child undergoes an individualised response to their actions and inquire into relevant rehabilitation resources and therapy to understand why they committed these acts to begin with.[10] This is in alignment with research that highlights how criminal activity from children is a result of greater mistreatment from their respective environments.[11] Addressing this trauma can greatly reduce the risk of recidivism and rehabilitate children. This approach endeavours upon a greater welfare focus than Australia’s current model as it prioritises the welfare of each individual child, rather than the current discrepancy of some children being incarcerated and others being afforded rehabilitation.

IV CONCLUSION

With regards to the ineffective and damaging nature of the current law on the minimum age of criminal responsibility, there needs to be federal legislative change that mandates the minimum age of criminal responsibility to be 14, across all states. Furthermore, Parliament House should implement national measures of applying trauma-informed responses to criminal behaviour in children. The funding that was meant for criminalising children, should be redirected towards more funding for rehabilitation and therapy resources. Upon these recommendations being actioned, hopefully Australia can see a decline in recidivism among young offenders.

[1] Amnesty International, ‘Why We Need to Raise the Minimum Age of Criminal responsibility’ (Web Page, 25 January 2022) <https://www.amnesty.org.au/why-we-need-to-raise-the-minimum-age-of-criminal-responsibility/#:~:text=Australia%20has%20one%20of%20the,reform%20the%20current%20minimum%20age>.

[2] RP v R (2016) 340 ALR 212, 215 [1].

[3] Katherine J McLachlan ‘Using a Trauma-Informed Practice Framework to Operationalise the #raisetheage Campaign’ (2023) 35(2) Current Issues in Criminal Justice 1, 2.

[4] Cheryl Axleby, ‘To keep young children out of adult prisons, Australia must urgently raise the age of criminal responsibility’, The Guardian (online, 29 August 2022 <https://www.theguardian.com/commentisfree/2022/aug/25/to-keep-young-children-out-of-adult-prisons-australia-must-urgently-raise-the-age-of-criminal-responsibility>.

[5] Ibid.

[6] Yolisha Singh, ‘Old enough to offend but not to buy a hamster: the argument for raising the minimum age of criminal responsibility’ (2023) 30(1) Psychiatry, Psychology and Law 51.

[7] Raise the Age, ‘Health and medical experts call for the age of criminal responsibility to be raised to at least 14’ (Web Page, 1 April 2023) <https://raisetheage.org.au/news-stories/open-letter>.

[8] William Tuomi and Dominique Moritz, ‘Criminal responsibility of older children: The failings of doli incapax in Australia’ (2023) Children & Society 1.

[9] Yolisha Singh, ‘Old enough to offend but not to buy a hamster: the argument for raising the minimum age of criminal responsibility’ (2023) 30(1) Psychiatry, Psychology and Law 51.

[10] Katherine J McLachlan ‘Using a Trauma-Informed Practice Framework to Operationalise the #raisetheage Campaign’ (2023) 35(2)Current Issues in Criminal Justice 1, 2.

[11] Yolisha Singh, ‘Old enough to offend but not to buy a hamster: the argument for raising the minimum age of criminal responsibility’ (2023) 30(1) Psychiatry, Psychology and Law 51.