Age of criminal responsibility in Australia

The age of criminal responsibility in Australia is the age below which a child is deemed incapable of having committed a criminal offence. In legal terms, it is referred to as a defence of infancy. All states and self-governing territories of Australia have adopted 10 years of age as a uniform age of criminal responsibility.

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]

Calls to raise minimum age

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] 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:[4]

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.

By jurisdiction
Jurisdiction Cannot be charged with a criminal offence Doli incapax

acts as a rebuttable presumption [5]

 Age in adult court Reference
CommonwealthUnder 1010 to under 1418Crimes Act 1914, s4M Criminal Code Act 1995, s7.1;

Crimes Act 1914, s4N Criminal Code Act 1995, s7.2

Australian Capital TerritoryUnder 1010 to under 1418Criminal Code 2002, s25 Criminal Code 2002, s26;

Children and Young People Act 1999, Part 1.3 ss7 and 8, and s69

New South WalesUnder 1010 to under 1418Children (Criminal Proceedings) Act 1987, s5; Common law: doli incapax;

Children (Criminal Proceedings) Act 1987, s3

Northern TerritoryUnder 1010 to under 1418Criminal Code Act, s38(1), s38(2);
QueenslandUnder 1010 to under 1418Criminal Code Act 1899, s29(1); Criminal Code Act 1899, s29(2); Juvenile Justice Act 1992, Schedule 4
South AustraliaUnder 1010 to under 1418Young Offenders Act 1993, s5; Common law doli incapax; Young Offenders Act 1993, s4;
TasmaniaUnder 1010 to under 1418Criminal Code Act 1924, s18(1);

Criminal Code Act 1924, s18(2); Youth Justice Act 1997, s3

VictoriaUnder 1010 to under 1418Children Youth and Families Act 2005, s344
Western AustraliaUnder 1010 to under 1418Criminal Code Act Compilation Act 1913, s29;

Criminal Code Act Compilation Act 1913, s29; Young Offenders Act 1994, s3

See also

References
  1. Australian Institute of Criminology, The age of criminal responsibility, September 2005 (Canberra). Accessed online at https://aic.gov.au/publications/cfi/cfi106
  2. R v CRH (Unreported, NSW Court of Criminal Appeal, Smart, Hidden and Newman JJ, 18 December 1996); C (A Minor) v DPP [1995] 2 WLR 383, 401-2; BP v R, SW v R [2006] NSWCCA 172 (1 June 2006).
  3. "Experts back call to raise age of criminal responsibility to 16". SBS Australia. 22 November 2018.
  4. "AMA calls for age of criminal responsibility to be raised to 14 years of age". Australian Medical Association. 25 March 2019. Retrieved 12 April 2019.
  5. "Archived copy" (PDF). Archived from the original (PDF) on 25 March 2012. Retrieved 12 October 2012.CS1 maint: archived copy as title (link)

Further reading
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