The Australian Medical Association and the Law Council of Australia recently called on Australia’s governments to raise the minimum age of criminal responsibility.
Current Criminal Responsibility
Presently, no child under the age of 10 cannot commit a criminal offence. In NSW, this irrefutable legal presumption is contained in section 5 of the Children (Criminal Proceedings) Act 1987 (NSW).
Children aged between 10 and 14 are presumed to be doli incapax (“incapable of crime”) because they lack the necessary knowledge to have a criminal intention. This presumption is however rebuttable. The prosecution must prove beyond all doubt that the child did the act, and the child knew the act was seriously and criminally wrong. The older the child is, the easier it is to prove guilty knowledge (R v CRH (1996); C v DPP (1996) 1 AC 1).
Arguments for Raising the Age
In their submission, the Australian Medical Association and Law Council of Australia argue that “raising the age of criminal responsibility will prevent the unnecessary criminalisation of vulnerable children”.
In particular, they argue that the current laws discriminate against children from Indigenous and low socio-economic backgrounds, as well as children with disabilities or mental illnesses. Most of the affected children “are not serious offenders”, and unnecessary incarceration may lead to institutionalisation and subsequent re-offending.
Raising the age of criminal responsibility will remove the need for courts to consider doli incapax arguments. It will also bring legislation in line with Australia’s international human rights obligations.
Arguments for Maintaining the Status Quo
In July 2019, the Senate voted down a push to increase the minimum age of criminal responsibility to 14 years.
Federal Attorney-General Porter has expressed reservations about the proposal: “I’m not overly enthusiastic about that reform”. The current doli incapax system gives courts “flexibility” to “prosecute people who’ve been under the age of 14 for very serious offences”. Porter noted that Australia could raise the age to 14, but with exceptions for children who commit “very serious criminal offences”.
Have Your Say
Clearly, this is a contested and complicated issue with arguments for and against.
What do you think?