In each state and territory in Australia, the law provides that children under 10 years of age cannot commit a criminal offence, as they are treated incapable of doing so.

For example, in New South Wales, section 5 of the Children (Criminal Proceedings) Act 1987 (NSW) provides that it shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence.

It is also important to note that there is a further common law rule which provides that there is a rebuttable presumption that a child between the ages of 10 and 14 cannot commit a criminal offence.

This presumption is referred to as ‘doli incapax’ (a Latin phrase meaning ‘incapable of deceit’) which refers to a child’s lack of capacity to be criminally responsible for their actions.

For a child under the age of 10, this presumption is irrebuttable and will always apply. For a child between the ages of 10 and 14, the prosecution may rebut this presumption.

In order to rebut this presumption, the prosecution will need to prove, beyond reasonable doubt, that the child knew their actions were morally wrong as opposed to ‘merely naughty or mischievous’.

This test has been developed from the High Court case of RP [2016] HCA 53.

The prosecution must rebut this presumption as an element of their case when pursuing criminal charges against a child between the ages of 10 and 14, in addition to any applicable elements of the relevant offence.

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What evidence will rebut the presumption?

When seeking to rebut the presumption of doli incapax, the prosecution will need to rely on a range of evidence, which will also ultimately depend on the child’s circumstances and the allegation.

Notably, it has been held that no matter how ‘horrifying’ or ‘obviously wrong’ the offence may be, the presumption cannot be rebutted merely due to the child committing such acts.

This is due to how the focus of the test is on whether the child appreciated that what they did was morally wrong, which also directs attention to their ‘intellectual and moral development’.

Therefore, evidence that may be utilised includes statements or admissions made by the child, behaviour of the child before and after the act, and any prior criminal history.

It may also include evidence related to the child’s home background and upbringing, as well as evidence of the child’s parents, teachers, as well as psychologists and psychiatrists.

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Room for reform?

In Australia, there is growing momentum for the age of criminal responsibility to be formally raised to 14, rather than the current age of 10.

This has been supported by numerous arguments, including recent medical evidence of brain development which indicates that children under 14 may not have the required capacity. The current scheme has also been criticised due to its disproportionate impact on disadvantaged and First Nations children.

A main argument in support of this is the reality that where a child has strong support networks, behaviour which may be considered ‘anti-social’ is normally addressed by their parents or school.

Where there is an absence of a strong support network, the child is often more likely to be dealt with by the criminal justice system (i.e., by the police and courts).

Children without a support network are often associated with those facing mental and physical health issues, disability, poverty, insecure housing, and abuse.

As examined by the Law Council of Australia in 2022, this is a powerful argument for raising the age, in that a child should not be harshly punished due to being disadvantaged.

It has also been illustrated that children who interact with the criminal justice system at an early age face lasting consequences including risks of recidivism and mental health issues.

Internationally, the average age of criminal responsibility is 14 years old. The UN Committee on the Rights of the Child urged the Australian Government in 2019 to raise the age to this standard.

So far, the Northern Territory raised the age of criminal responsibility to 12 in 2023.

Victoria now plans to raise the age from 10 to 12 by 2024, and hopefully to 14 by 2027.

The Australian Capital Territory has taken a similar approach, with the territory recently introducing a bill to raise the age to 12, and to 14 by mid-2025.

Tasmania has announced that whilst it will raise the minimum age of incarceration to 14 in 2024, it will keep the age of criminal responsibility at 10.

There has been no formal confirmation of the plans of New South Wales, Queensland, South Australia, and Western Australia.

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Closing the gap on Systemic inequalities

The current age of criminal responsibility disproportionately affects disadvantaged and First Nations children.

This is a reflection of broader systemic inequalities where these groups are more likely to face poverty, lack of access to quality education, and other social determinants that increase the risk of coming into contact with the criminal justice system.

By criminalizing these children, the system effectively punishes them for circumstances often beyond their control. The argument here is for a justice system that is sensitive to these inequalities and seeks to provide support and intervention rather than punishment.

This approach not only addresses the immediate issue of criminal behavior but also tackles the underlying societal issues that contribute to this behavior, leading to more equitable and just outcomes - further underlying the need for reform.

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Focus on Rehabilitation rather than Punishment

The age of criminal responsibility aims to punish kids at such a young age, rather than focusing on punishment we should seek to focus on rehabilitation, access to education, and support systems when dealing with young offenders.

Rehabilitation focuses on understanding the underlying causes of criminal behavior in children, such as socio-economic factors, family environment, or mental health issues, and addressing these root causes.

This approach not only aids the child in question but also serves the broader societal interest by reducing the likelihood of reoffending. It's about breaking the cycle of crime at an early stage and giving children the tools and support they need to lead productive, law-abiding lives.

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For further information or legal assistance, contact our team of defence lawyers for a free consultation.