17
June 2022
PDF version [315 KB]
Cassie Davis
Law and Bills Digest
In all Australian jurisdictions, a child
under 10 years cannot be found guilty of a criminal offence. This is generally
consistent with standards in common law countries. Between 10 and 14 years, the
prosecution must prove that the child knew their conduct was wrong before they
can be convicted of an offence (called the doctrine of doli incapax).
Despite it being part of the law in all jurisdictions, not all jurisdictions
have included the doctrine in relevant legislation. This means the application
of doli incapax in practice is not uniform across Australian states and
territories.
This quick guide looks at the current status of the law in
each jurisdiction, including recent reviews. It also discusses criticisms of
Australia’s minimum age of criminal responsibility by human rights advocates
and the international community.
Current status of the law
The Common Law
The common law presumes that a child under 14 years of age
is doli incapax (from the Latin ‘incapable of deceit’), meaning that
they are considered to lack the capacity to be criminally responsible for their
acts. If a child is between the ages of 10 and 14 years, this presumption may
be rebutted by evidence that the child knew that it was morally wrong to engage
in the act.
In RP
v The Queen (2016) the High Court of Australia found that the
prosecution’s evidence was insufficient to rebut the doli incapax
presumption, and stated:
What suffices to rebut the presumption that a child defendant
is doli incapax will vary according to the nature of the allegation and
the child. A child will more readily understand the seriousness of an act if it
concerns values of which he or she has direct personal experience…Rebutting [the
doli incapax] presumption directs attention to the intellectual and
moral development of the particular child. Some 10-year-old children will
possess the capacity to understand the serious wrongness of their acts while
other children aged very nearly 14 years old will not. [para 12]
The Commonwealth
Under the Crimes Act 1914
(Cth) (Crimes Act), the minimum age of criminal responsibility for
Commonwealth offences is 10 years of age.
Section 4M of the Crimes Act provides that a child
under 10 years old cannot be liable for an offence against a law of the
Commonwealth. Section 4N(1) provides that a child aged 10 years or more but
under 14 years old can only be liable for an offence against a law of the
Commonwealth if the child knows that his or her conduct is wrong, and section
4N(2) specifies that ‘whether a child knows that his or her conduct is wrong is
one of fact’. The burden of proving that the child has sufficient
capacity to know that the act/omission was one they ought not to do or
make is on the prosecution, using evidence such as medical records, school
reports, any police interviews with the child et cetera.
Reviews and legislative change
The Council of Attorneys-General (CAG) announced
on 23 November 2018 that a working group would be established to examine
whether to raise the age of criminal responsibility. This body subsequently
became the Meeting
of Attorneys-General (MAG), made up of Attorneys-General from the
Australian Government, all states and territories, and the New Zealand Minister
for Justice.
On 14 October 2019, Rebekha Sharkie MP introduced the Crimes
Legislation Amendment (Age of Criminal Responsibility) Bill 2019. This Bill
was to amend the Crimes Act and the Criminal Code Act
1995 (Cth) to increase the minimum age of criminal responsibility for
Commonwealth offences from 10 years of age to 14 years of age. The Bill
proceeded to second reading stage but was not passed.
In December 2019, the CAG called for submissions to the
working group. These submissions have not been released to the public by the
CAG, but the #RaiseTheAge
organisation has published 48 of the submissions on its website. In
addition to making a submission to the working group, the Law Council of
Australia published
a joint policy statement with the Australian Medical Association on raising
the minimum age of criminal responsibility to 14 years of age.
When asked about raising the age of criminal
responsibility, Attorney-General
Michaelia Cash told the Senate Legal and Constitutional Affairs Legislation
Committee in October 2021 that:
… it's a matter for each jurisdiction individually as to
whether or not to raise the minimum age. This is primarily a matter for states
and territories, so it's not about all the states and territories ultimately
agreeing. They can actually do it individually should they wish to … at 18
October 2021, there are actually no young people under the age of 14 in
detention, sentenced or awaiting sentence for Commonwealth offences ... (p.
114).
The MAG
subsequently advised on 15 November 2021 that:
State Attorneys-General supported development of a proposal
to increase the minimum age of criminal responsibility from 10 to 12, including
with regard to any carve outs, timing and discussion of implementation
requirements (p. 4).
New South Wales
Section 5 of the Children
(Criminal Proceedings) Act 1987 provides that it ‘shall be conclusively
presumed that no child who is under the age of 10 years can be guilty of an
offence.’ Additionally, the Young
Offenders Act 1997 (Young Offenders Act) defines a child as
being a person over 10 years and under the age of 18 years. The common law
position regarding children between the ages of 10 years and 14 being entitled
to the doli incapax presumption is not enshrined in NSW legislation.
The Young Offenders Act does, however, impose
different conditions for children over 14 years of age in some circumstances.
Children under the age of 14 must have an adult who is responsible for the child
or a lawyer present for admissions of offences and explanations relating to
cautions or conferences to be valid under the Young Offenders Act. If a
child is 14 years or older, these admissions and explanations can also take
place in the presence of an adult chosen by the child.
Case law
The common law and relevant legislation were recently
considered by the NSW Children’s Court in Police
v CO [2020]. Criminal charges against a young person for shoplifting
were dismissed as the court considered that a warning given for a prior
attempted offence was not ‘sufficient to establish the Young Person’s knowledge
that her conduct was something more than just naughty or mischievous’ (para
35).
Reviews and legislative change
A NSW
Parliamentary committee investigating Aboriginal incarceration recommended
in April 2021 that the age of criminal responsibility be raised from
10 to 14 years old to reduce the rate of imprisonment (recommendation 11). In
its response,
the NSW Government advised that ‘the age of criminal responsibility is being
considered at a national level and was discussed at the Meeting of
Attorneys-General in March 2021. NSW supports this process …’.
MLC David Shoebridge introduced a Private Members Bill, the
Children
(Criminal Proceedings) Amendment (Age of Criminal Responsibility) Bill 2021
to the NSW Legislative Council on 11 November 2021, which would have
raised the age of criminal responsibility to 14 years. The Bill was not passed.
Victoria
Under section 344 of the Children,
Youth and Families Act 2005 (Vic) (CYF Act), it is conclusively
presumed that a child under the age of 10 years cannot commit an offence. The
definition of child in the CYF Act includes ‘a person who at the time of
the alleged commission of the offence was under the age of 18 years but of or
above the age of 10 years’ but does not include a person who was ‘of or above
the age of 19 years when a proceeding for the offence is commenced in the
Court’ (subsection 3(1)).
As with NSW, the doli incapax presumption is
not included in legislation. The CYF Act restricts transfers of children
under 14 years of age from residential centres to youth justice centres
(section 465). The CYF Act also applies additional rights and
restrictions relating to children under 15 years of age, including:
-
a parent of a child under 15 years of age can withdraw consent to
an extension of the time limit for filing a charge-sheet after receiving legal
advice (subsection 344A(5)(b))
-
if the parent of a child under 15 years is not before the court,
a hearing for certain indictable offences may be adjourned
(subsection 356(2))
-
a fine imposed by the court for offences cannot exceed 2 penalty
units for a child under 15 years (as opposed to 10 penalty units
otherwise) (subsection 373(b))
-
a court may make a youth residential centre order for a child
aged 10 years or more but under 15 years (section 410).
Case law
In the decision DPP
v Martin (a Pseudonym) (2019), the Victorian Supreme Court, Court of
Appeal considered evidence led in the trial of an adult of actions they
committed as a child. The court held that the prosecution did not have to rebut
the presumption of doli incapax in respect of these actions as
the evidence was only led as context to the separate adult offences before the
court.
Reviews and legislative change
The Legislative Council Legal and Social Issues
Committee’s Inquiry
into Victoria’s criminal Justice System found that Victoria’s agreement
through the MAG to contribute to a proposal to raise the minimum age of
criminal responsibility to 12 was ‘out of step with the views and evidence
presented by stakeholders who contributed to its Inquiry’ and that there was
‘overwhelming support for amending s 344 of the Children, Youth and Families
Act 2005 (Vic) to raise the minimum age of criminal responsibility in
Victoria to at least 14 years old’ (p. 125). The Victorian Government’s
response to this report is due
on 24 September 2022.
Queensland
The Criminal
Code Act 1899 (Qld) specifies that a person under the age of 10 years
is not criminally responsible for any act or omission (section 29(1)). The doli
incapax presumption is included in section 29(2), which states, ‘a person
under the age of 14 years is not criminally responsible for an act or omission,
unless it is proved that at the time of doing the act or making the omission
the person had capacity to know that the person ought not to do the act or make
the omission’.
Section 175 of the Youth
Justice Act 1992 (Qld) sets out the sentencing orders that can be made
by a judge if a child is found guilty of an offence. Different maximum
sentences are applied to children who are between 13 and 15 years of age, and
those who are over 15.
Case law
The Childrens (Magistrates) Courts of Queensland decided
in Queensland
Police Service v DSL [2019] that a 12-year-old child was guilty of
animal cruelty. The court considered that a statement made by the child to
police established the child knew their actions were morally wrong and rebutted
the doli incapax presumption. The court noted that ‘evidence of
statements of the child are highly probative’ but their use ‘must be approached
with caution’ (para 45).
Reviews and legislative change
On 12 February 2018, the Queensland Government appointed
former Police Commissioner Robert Atkinson to examine and report on a series of
youth justice matters. The
2018 Report on Youth Justice (Atkinson Report) recommended that the
Government advocate for raising the minimum age of criminal responsibility to
12 years as part of a national agenda for all states and territories
(recommendations 68 and 69).
On 15 September 2021, Michael Berkman introduced a Private
Members Bill, the Criminal
Law (Raising the Age of Responsibility) Amendment Bill 2021, to the
Queensland Parliament. The Bill was referred to the Community Support and
Services Committee, which concluded in
its 2022 report that the Bill should not be passed as ‘there is more work
to be done before the minimum age of criminal responsibility is raised in
Queensland’ (p.7).
Northern Territory
Section 38(1) of the Criminal
Code Act 1983 (NT) states that a person under the age of 10 years is
excused from criminal responsibility for an act, omission or event. The doli
incapax presumption is included in section 38(2), which states that a
person under the age of 14 years is excused from criminal responsibility for an
act, omission or event unless it is proved that at the time of doing the act,
making the omission or causing the event he had capacity to know that he ought
not to do the act, make the omission or cause the event.
A youth is defined in the Youth
Justice Act 2005 (NT) (YJA Act) as being a person under 18 years
of age or a person apparently under 18 years of age. A person who committed an
offence as a youth but has since turned 18 years of age is also considered to
be a youth for the purposes of this Act and the Bail Act
1982 (NT).
In the NT YJA Act, there are different requirements
for older children in some circumstances. For example:
-
section 125 sets out maximum terms of detention or imprisonment
for those under 15 years of age (125(2)(b)(ii)), and those over 15 years of age
(125(2)(b)(i))
-
if an offence is committed after a youth turns 15 years of age,
that offence can be taken into account by all courts (that is, not just the
Youth Justice Court) (section 136(2)(b)).
Case law
In RJ
v Dunne (2021), the Supreme Court of the Northern Territory considered
whether a finding that the prosecution had rebutted the presumption of doli
incapax could be sustained in light of new evidence of the child’s
circumstances.
The court found that a medical report filed after the
hearing established the child’s ‘understanding of the wrongfulness of her
conduct is likely to only be a superficial one…and was unlikely to have been
underpinned by any deeper or more meaningful understanding of the construct of
criminal responsibility’ (para 24). The child’s convictions were therefore
quashed.
Reviews and legislative change
A recommendation
of the Royal
Commission into the Protection and Detention of Children in the Northern
Territory was to raise the age of criminal responsibility from 10 years to
12 years. This recommendation was supported
in principle by the NT Government but is yet to be implemented.
Western Australia
Section 29 of the Criminal
Code Act Compilation Act 1913 (WA) states that ‘a person under 10 years
is not criminally responsible for any act or omission’, and ‘a person under the
age of 14 years is not criminally responsible for an act or omission, unless it
is proved that at the time of doing the act or making the omission he had
capacity to know that he ought not to do the act or make the omission’.
The Young
Offenders Act 1994 (WA) defines a young person as being a person who
has not reached the age of 18 years (section 3). The Act applies to a person
who commits or allegedly commits an offence before reaching the age of 18 years
(section 4).
This Act also provides that:
-
a young person over the age of 16 years can be held in a prison
for adults, but cannot share living quarters with an adult (section 7)
-
sections 50, 50A and 50B provide for different sentencing options
for a young person aged under 17, aged 17 but not yet 18, and aged over 18 or
over at the time of sentence.
Case law
In Rye
v The State of Western Australia (2021), the Supreme Court of Western
Australia acquitted a person who was 13 years old at the time of offending on
the basis that there was insufficient evidence of the person’s capacity at the
time.
Justice Vaughan stated of the requirement for a child to
have capacity to know that he ought not to do the act or make the omission
means that a child must have ‘the capacity to know that the act or omission is
wrong by the normal adult standards of a reasonable person’ (paragraph 92).
Reviews and legislative change
Western Australian Labor passed a
motion to raise the age of criminal responsibility from 10 years to 14 years
at their state conference on 2 October 2021. The WA Government has yet to act
on this motion, with
the Attorney-General recently advising the legislative council:
At the meeting of Attorneys General held on 12 November 2021,
all state Attorneys General supported the development of a proposal to increase
the minimum age of criminal responsibility from 10 years to 12 years, including
with regard to carve outs, timing and discussion of implementation
requirements.
South Australia
Section 5 of the Young
Offenders Act 1993 (SA) provides that a person under the age of 10
years cannot commit an offence. This Act defines a youth as a person of or
above the age of 10 years but under the age of 18 years and includes a person
who was under the age of 18 years on the date of the alleged offence (section
4). Except for providing that offenders over 17 years of age can be transferred
to a prison under some circumstances (section 63), the Act does not distinguish
between older and younger children.
Case law
In R
v ADC (2021), the Supreme Court of South Australia reviewed a refusal
to grant bail to a 13 year old child by a District Court judge. When
granting bail to the child, the court noted a relevant consideration was the likelihood
of the prosecution being able to rebut the presumption of doli incapax
with respect to a child who has a significant cognitive impairment.
Reviews and legislative change
South Australia has not taken any action independently of
the Meeting of Attorneys-General to raise the age of criminal responsibility.
Attorney General Vickie Chapman commented:
My preference has always been that we pursue a nationally
consistent approach to the minimum age of criminal responsibility … I will
continue to discuss this matter with my colleagues interstate and nationally,
as well as work with those on the ground in South Australia who best understand
the system and possible implications of change.
Tasmania
Under section 18 of the Criminal
Code 1924 (Tas) no act or omission done or made by a person under 10
years of age is an offence, and no act or omission done or made by a person
under 14 years of age is an offence, unless it is proved that they had
sufficient capacity to know that the act or omission was one which they ought
not to do or make.
Children in Tasmania are generally dealt with under the Youth
Justice Act 1997 (Tas). A youth is defined in this Act as being a person
who is 10 or more years old but less than 18 years old at the time when the
offence the person has committed, or is suspected of having committed, occurred
(section 3).
The Youth Justice Division of the Magistrates Court does
not have jurisdiction to hear matters involving youths who have committed a
prescribed offence (see sections 3 and 161 of the Youth Justice Act 1997).
Which offences are defined as being prescribed offences for children aged under
14, aged between 14 and 16, and those aged 17 years. Children who have
committed a prescribed offence are tried as adults in the Supreme Court in
accordance with the Justices
Act 1959.
Case law
The Supreme Court of Tasmania (Court of Criminal Appeal)
considered the sentencing of a 17 year old in Director
of Public Prosecutions v J S P (2020). The court stated:
It is true that the justification for the principles
governing the sentencing of youthful offenders is that such offenders are not
able to appreciate the nature and extent of their criminality. They are more
likely to make ill-considered and immature decisions. At the same time…the
importance of rehabilitation of a youthful offender is usually far more
important than general deterrence, but that there are cases in which just
punishment and general deterrence become at least equally important. (para 26)
Reviews and legislative change
On 26 October 2021, a
motion in the Legislative Council to raise the minimum age of criminal
responsibility in Tasmania from 10 to 14 was agreed to.
Elise Archer, the Tasmanian Attorney-General, told
the House of Assembly on 24 November 2021:
We have said on a number of occasions that we want to work in
a nationally consistent way. We were pleased that at the meeting on Friday 12
November, the Attorneys-General agreed to support the development of a proposal
to increase the age of criminal responsibility from 10 years to 12 years, which
will include consideration of carve-outs and timing, as well as a discussion of
implementation supports.
Australian Capital Territory
Section 25 of the Criminal Code 2002
(ACT) currently provides that a child under 10 years old is not criminally
responsible for an offence, and section 26 states that a child aged 10 years or
older, but under 14 years old, can only be criminally responsible for an
offence if the child knows that his or her conduct is wrong.
Young offenders in the ACT are dealt with under the Children and Young
People Act 2008 (ACT). For this Act:
-
a child is defined as a person who is under 12 years old (section
11)
-
a young person means a person who is 12 years or older, but not
yet an adult (section 12)
-
a young offender is a person who has been convicted or found
guilty of an offence and they were under 18 years old when the offence was
committed (section 3: Dictionary)
-
a person who is at least 18 years old but under 21 is still
considered to be a young detainee if the person was under 18 years old at the
time the relevant offence was committed (section 95(2)), but different
requirements regarding separation from adult detainees apply (see, for example,
section 100).
Case law
In UD
v Bishop (2021) the full court of the Supreme Court of the ACT
considered whether a child defendant must provide evidence that they did not
know that their conduct was wrong to raise the issue of doli incapax.
The court found that the ACT Code only placed a burden of proving the appellant
knew his conduct was wrong upon the prosecution, and there was no evidential
burden upon the child.
Reviews and legislative change
On 20 August 2020, a motion to
raise the age of criminal responsibility from 10 to 14 years of age was
passed by the ACT Legislative Assembly.
The Review of the
Service System and Implementation Requirements for Raising the Minimum Age of
Criminal Responsibility in the Australian Capital Territory was subsequently
commissioned in 2021 by the ACT Justice and Community Safety Directorate to
assess the changes required for raising the minimum age of criminal
responsibility. The final report of the Review was published in August 2021.
The legislation to raise the age of criminal is reported
to have stalled pending decisions on when to introduce the legislation and what
form it will take.
Criticism of Australia’s minimum
age of criminal responsibility
International criticism
The United
Nations Committee on the Rights of the Child in 2019 formally noted its serious
concern about the ‘very
low age of criminal responsibility’ in Australia. The Committee called on
Australia to raise the minimum age of criminal responsibility to an
‘internationally accepted level and make it conform with the upper age of 14 at
which doli incapax applies’ (p. 13).
The Summary
of Stakeholders Submissions to the UN’s Universal Period Review (UPR) Working
Group contained calls from a variety of stakeholders, including the Australian
Human Rights Commission (AHRC), that the minimum age of criminal
responsibility be raised to at least 14 years. During the UPR Working Group
session, 31 countries recommended that
Australia raise the minimum age of criminal responsibility (p. 16-17).
Amnesty
International’s Report 2021/22 was published on 29 March 2022. It was noted
in the report that the ACT had committed to increase the minimum age of
criminal responsibility to 14, but ‘Australia continued to detain children as
young as 10 years old’ (p. 79).
Criticism from Australian
stakeholders
The AHRC found in its 2019 report In
Their Own Right: Children’s Rights in Australia that there is limited
evidence the doli incapax principle is properly applied in practice to
avoid unnecessary incarceration of children.
Several Aboriginal-led, medical, legal and human rights
organisations, are continuing
to pressure Australian Governments to increase the minimum age of criminal
responsibility to 14 years of age. Major campaigns include Change the Record and #RaiseTheAge.
Change the Record is an ‘Aboriginal led justice coalition of
Aboriginal peak bodies and non–Indigenous allies’ which is working to ‘end the
incarceration of, and family violence against, Aboriginal and Torres Strait
Islander people’. They argue that ‘when a child is under the age of 14, they
haven’t yet developed the capacity to assess risk, predict consequences or
control their impulses. They are simply too young.’
The #RaiseTheAge campaign was developed by a coalition of
legal, medical and social justice organisations to call on the government to
raise the age of criminal responsibility to at least 14 years old.
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