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 as 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 a reasonable doubt, that the child knew their actions were morally wrong as opposed to ‘merely naughty or mischievous’. The distinction is between conduct that amounts to mere naughtiness and conduct that is criminally wrong. Cases involving minors are heard in the children's court, which is the specialised venue for such matters.

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. The types of offences children may be charged with are handled under the Criminal Code and Crimes Act, but the act itself is not sufficient to establish knowledge of wrongdoing. The prosecution's case must establish, with sufficient evidence, that at the time of the alleged offence, the child understood the serious wrongness of their conduct.

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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’. In making this determination, it is important to assess the child's development, education, and environment.

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, psychologists and psychiatrists. If a child is convicted, there may be grounds for a criminal appeal if it is later found that the presumption of doli incapax was not properly rebutted.

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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 is significant because Australia currently has one of the lowest ages of criminal liability globally, with children aged as young as 10 able to be held criminally liable for crimes committed, compared to higher minimum ages in other countries.

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. Vulnerable children, including many children from marginalised communities, are overrepresented in the youth justice system, highlighting the need for reform to better support children and young people.

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. Early intervention, support services, and social services are crucial in supporting children and young people, helping to prevent their involvement in the youth justice system. Alternatives such as therapeutic support panels and youth justice conferences provide community-based responses rather than traditional criminal proceedings.

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). This increases the risk of a young person being held responsible or held criminally responsible for serious crimes, including grievous bodily harm, and has led to debate about whether exceptions should be made for such offences. 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 United Nations, through the Committee on the Rights of the Child, has urged the Australian Government to raise the age to this standard, and Amnesty International has also advocated for a minimum age of 14 to protect vulnerable children. In comparison, the age of criminal responsibility in NSW remains at 10, which is among the lowest ages worldwide when compared to other countries.

So far, the Northern Territory has 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 was the first Australian jurisdiction to raise the age of criminal responsibility, introducing a bill to raise the age to 12, then to 14 by mid-2025. This is a significant milestone for Australian jurisdictions and reflects a broader shift towards reforming the youth justice system to better support young people and communities.

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. Attorneys general in these states continue to consider legislative changes, with communities playing a vital role in advocating for reforms that support children and young people.

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Closing the Gap on Systemic Inequalities

The current age of criminal responsibility disproportionately affects disadvantaged and First Nations children, including Torres Strait Islander children, who are overrepresented and particularly vulnerable within the juvenile justice system.

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 criminalising 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 behaviour but also tackles the underlying societal issues that contribute to this behaviour, 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 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 behaviour 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.

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

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