Age of criminal responsibility in Australia

Doli incapax refers to a presumption that a child is "incapable of crime" under legislation or common law, or rather, the presumption that a child cannot form mens rea as they do not yet have a sufficient understanding of the difference between "right" and "wrong". In the context of Australian law, doli incapax acts as a rebuttable presumption for children aged at least 10 but less than 14.[1]

To rebut this presumption, the prosecution must prove beyond reasonable doubt that the child knew that the act was seriously wrong (not by standards of law, but morally or according to the ordinary principles of reasonable persons) “as distinct from an act of mere naughtiness or childish mischief”.[2]

According to a 2018 SBS article, around 600 children under 14 are locked up in Australian prisons each year.[3]

On an average night in June 2019, there were 949 young people imprisoned in Australia. Of these:[4]

• 90% were male;
• 83% were aged 10–17 (the remainder 18–20);
• 63% were unsentenced;
• 53% were Aboriginal and/or Torres Strait Islander youth.

In the year ending 30 June 2020, there were almost 600 children aged 10 to 13 in detention in Australia.[4]

From June 2015 to 2019, the Northern Territory had the highest rate of young people in detention on an average night).[4]

In 2018, legal and medical experts called for the age to be raised to 14. In response, the state and commonwealth Attorneys General decided to investigate the matter,[3] and the Council of Attorneys-General Age of Criminal Responsibility Working Group was established to do this.[5][6]

According to Australian Medical Association President Dr Tony Bartone, raising the minimum age of criminal responsibility will prevent the unnecessary criminalisation of vulnerable children. In an Australian Medical Association media release, Dr Bartone said:[7]

Australia has one of the lowest ages of criminal responsibility in the world.

The criminalisation of children in Australia is a nationwide problem that disproportionately impacts Aboriginal and Torres Strait Islander children.

Most children in prison come from backgrounds that are disadvantaged. These children often experience violence, abuse, disability, homelessness, and drug or alcohol misuse.

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.

Children who are forced into contact with the criminal justice system at a young age are also less likely to complete their education or find employment, and are more likely to die an early death.

In November 2019, Attorney-General of Australia, Christian Porter, was of the opinion that the current system was working well.[8]

In the year ending 30 June 2020, there were almost 600 children aged 10 to 13 in detention in Australia.[4] Criminologist Chris Cuneen cites a number of well-founded reasons for increasing the minimum age of criminal responsibility in Australia to 14, echoing Dr Bartone's list above.[9] Doctors, lawyers, and a range of experts have called for the minimum age to be raised to 14.[10]

The Australian Human Rights Commission submitted its report, Review of the age of criminal responsibility, to the Working Group on 26 February 2020.[5] The Law Council of Australia submitted its report on 2 March 2020.[6] However on 27 July 2020 the Working Group said that more work needed to be done to determine alternative ways to deal with young offenders, and that the age would remain as it is for at least another year. Both the Attorney General of New South Wales, Mark Speakman, and the Attorney General of South Australia, Vickie Chapman, expressed would not consider passing state laws until the Working Group had finished its review.[11][12]

In August 2020 the Legislative Assembly of the ACT voted to increase the age of criminal responsibility to 14 in line with UN standards,[13] a move welcomed by Indigenous advocates.[14] The support is in principle only, and dependent upon the Labor government being re-elected in October.[15][16]

There has been much commentary on the effect that incarceration of children has on Aboriginal and Torres Strait Islander people's lives, with Indigenous children disproportionately represented in the figures (more than 60% of 10–13-year-olds). The Law Council, the Royal Australasian College of Physicians and others have said that there needs to be more emphasis on "support services, treatment, early intervention, prevention, justice reinvestment initiatives and community-led diversion programs", built on Indigenous authority and culture.[9][17] The matter of incarceration of Indigenous adults and children, and a recognition of its relationship to disadvantage, has been recognised and reflected in the 2020 targets of the federal government's Closing the Gap strategy.[18]

A documentary film by Maya Newell called In My Blood It Runs follows a 10-year-old Arrernte/Garrwa boy who got into trouble and was almost imprisoned. As a twelve-year-old, the boy was the youngest person ever to make a speech to the UN Human Rights Council about youth incarceration.[8][19]

• Indigenous Australians and crime#Children in detention
• Juvenile detention in the Northern Territory
• Punishment in Australia

• R v LMW [1999] NSWSC 1109, 17 November 1999
• Legal Studies - HSC (State Library of NSW)
• Recent doli incapax case, NSW Supreme Court