What do we mean when we say, ‘minimum age of criminal responsibility’?
The minimum age of criminal responsibility is the age at which children can be incarcerated in a youth justice facility, but also the age at which they can become engaged in the broader justice system, including being arrested and subject to criminal proceedings in the Children’s Court
What is the current age of Criminal Responsibility in Australia?
The minimum age of criminal responsibility across Australia is 10 years old. While this is currently consistent across all States and Territories - the Northern Territory and ACT Governments have recently made moves to increase this to 12 and 14 respectively. Tasmania has announced that it will raise the minimum age of detention to 14. The Victorian Government has also indicated that they will raise the minimum age of criminal responsibility in VIC to 12 years old.
In Australia, the minimum age of responsibility operates alongside a legal presumption known as doli incapax – meaning that children aged 10-14 years are incapable of committing a crime. However, the Doli Incapax presumption is fairly complex in application and not always applied consistently. It also only becomes operative once the child has reached the trial stage of the justice process, meaning they have still been subjected to the trauma of the system in the first place.
Why should all states and territories raise the MACR to 14?
Medical consensus regarding child brain development shows that children under the age of 14 are undergoing significant growth and development, which means that they may not have the required capacity to be criminally responsible.
Research shows that immaturity can affect a number of areas of cognitive functioning including:
- Consequential thinking
There is also clear evidence that children in our criminal legal system have high rates of additional neurocognitive impairment, trauma, and mental health issues. Given the high rate of neurodevelopmental delay experienced by children in youth centres of detention, behaviours often reflect the developmental age of the child, which may be several years below their chronological age.
Judging criminal responsibility on the basis of a chronological age is inappropriate for children who may have a much lower developmental age due to medical and developmental conditions as well as socio-political factors including trauma and poverty.
The evidence overwhelmingly shows that when children in the very young age bracket of 10 to 13 years of age are forced through a criminal legal process during their formative developmental phases, they suffer immense and enduring harm. Worse still, this compounds the disadvantage they were experiencing prior to their first contact with the legal system, particularly for those who are chronically over-represented in the criminal legal system.
You can read more about the medical impacts of Australia’s low MACR in this letter sent to all Premiers, Attorneys-General and Health Ministers from a coalition of 32 health and medical organisations across Australia.
Why is this an Aboriginal and Torres Strait Islander justice issue?
Aboriginal and Torres Strait Islander children are disproportionately impacted by these laws.
Australia’s low MACR is separating children from their communities, inflicting deep and lasting wounds, and perpetuating cycles of injustice for First Nations young people.
- In 2022, over half of all young people in detention on an average night were Aboriginal or Torres Strait Islander, despite making up just 6% of the Australian population aged 10-17.
- In 2021–22, the rate of Indigenous young people aged 10–17 in detention on an average day was 28 per 10,000, compared with 1.2 per 10,000 for non-Indigenous young people. This means Indigenous young people aged 10–17 were about 24 times as likely as their non-Indigenous counterparts to be in detention on an average day.
How is Raising the Age linked to Close the Gap?
Raising the MACR to 14 would have an immediate impact on Australia’s ability to meet its Closing the Gap targets. In particular Target 11, which aims to ensure that Aboriginal and Torres Strait Islander young people are not overrepresented in the criminal justice system as currently Aboriginal and Torres Strait Islander children represent over 60 percent of all children in detention in Australia on an average day.
Where does Australia stand internationally on this?
In 2019, the UN Committee on the Rights of the Child released a general comment on children’s rights in the child justice system which recommended that the age of criminal responsibility for all nations be increased to 14.
Under scrutiny at a Universal Periodic Review in January 2021 (an instrument of the UN Human Rights Council to hold Governments accountable for human rights records) 31 countries recommended that Australia raise the age of criminal responsibility to international standards of 14 – Australia defied these calls, noting that responsibility for the age of criminal responsibility is shared with the states and territories.
Some states and Territories have committed to raise the age to 12, is that not high enough?
There is no good age for a child to be locked away in prison. The medical evidence is clear that children under the age of 14 years are undergoing significant growth and development, and any contact with the criminal justice system can cause lifelong harm and trauma.
Raising the age to just 12 would also be in contrast to the recommendations of the Draft Final Report 2020 – Council of Attorneys-General
Age of Criminal Responsibility Working Group which recommends that the
age is raised to 14 with no exceptions.
The medical evidence and internationally accepted standards make it clear that 14 years should be the minimum age of criminal responsibility. This was also pointed out by the United Nations Committee Against Torture’s recently published concluding observations on Australia, which called the current age of criminal responsibility “very low” and recommended that the age be raised in accordance with international standards.
But what about community safety?
We create safe and healthy communities by meeting the needs of children, not locking them away and making things worse in the future.
That means investing in community services to support families, health and disability care, and working with schools to keep children engaged.
What about kids who engage in serious and harmful behaviours?
It is rare for children aged 10-13 years to be charged with a serious offence of violence. The majority of children who get funnelled into the criminal legal system are dealt with for offences of theft, burglary, and property-related crime.
Where a child aged between 10 and 13 years is alleged to have caused harm to another, this is a sign of something having gone wrong in that child's life. Violent actions or behaviour in young children are often directly linked to experiences of trauma, neglect, and harm or unaddressed mental or physical health problems. Rather than criminalise trauma, it is the responsibility of our governments to provide that child with the services needed to address the underlying causes of their behaviour and to set them onto a better path. The worst place for a child to be is in prison.
There are services and programs which are more responsive to the needs of children and effective in addressing problematic behaviours.
Critically, these are therapeutic and developmentally appropriate, rather than punitive.
What should be the alternative for youth who engage in criminal activity if not youth detention?
Doctors say that children aged 10 to 13 years lack emotional, mental, and neurological maturity to really understand the consequences of their actions – this is why locking kids up is not only cruel, but it also doesn’t work!
When children’s brains are still developing throughout these formative years they need age-appropriate, therapeutic responses to their actions. This could mean an experienced youth worker supporting a child to recognise the harm caused by their behaviour; it could involve a case worker supporting a whole family to support a young person who is struggling; or it could mean a young person participating in a program to develop skills to cope with complex or distressing emotions. There are lots of evidence-based programs and supports that support children to learn and grow, instead of just locking them away.
Governments should prioritise and invest in early intervention, prevention, and diversion as the most effective ways to reduce child and youth offending and re-offending.
Why are you targeting federal MPs instead of state MPs?
Constitutionally, the States and Territories are empowered to set their own MACR. This is why the NT and ACT have both independently stated that they will raise the age to 12 and 14 respectively.
A number of State and Territory leaders, however, have noted in recent years that they would favour a nationally consistent approach with respect to the treatment of children in the justice system.
Given international scrutiny and the desire for national uniformity, there is a strong case for moral leadership and responsibility ultimately resting with the Commonwealth.
We are therefore calling on federal leaders to manage a streamlined, timebound, nationally consistent approach to raising the age to 14 without exception.