Children do not belong behind bars, yet in most jurisdictions across Australia, children as young as ten can be charged, convicted, and incarcerated. Australia’s low minimum age of criminal responsibility is at odds with expert advice on childhood development and well below the global average.
Criminal responsibility is the legal principle that a person can be held accountable for committing a crime on the basis that they have the capacity to both understand right from wrong, and the ability to control their actions in compliance with the law. If these capacities are lacking, then the individual has not freely chosen to act as they did, meaning they are deemed not criminally responsible for their actions. The minimum age of criminal responsibility (MACR) in most of Australia dictates that children younger than ten are incapable of breaking the law as they are too young to have the capacities required to do so.
Despite overwhelming evidence that supports an increase in the MACR, resistance at both state and federal levels of politics remains. Raising the age has been shown to decrease rates of youth offending and reduce over-representation of First Nations children in the criminal justice system. These findings have been supported by medical and sector experts, advocates, service organisations and through international cases; revealing government failure in upholding the rights of all children.
Research by the Australian Medical Association indicates that the maturity and the capacity for abstract reasoning is still evolving in children aged 12 to 14 years of age, due to their frontal cortex (the part of the brain that controls behaviours) still developing. Young children are unlikely to understand the impact of their actions, or to comprehend criminal proceedings. Children as young as ten have not yet developed the requisite level of maturity required to form the necessary intent for criminal responsibility. Adolescence is a defining stage of human development, characterised by rapid brain development, and this also affects risk-taking behaviours, certain kinds of decision-making and the ability to control impulses. Children’s exposure to the criminal legal system often further exacerbates pre-existing mental/physical health complexities and cognitive disabilities.
The negative effects of labelling youth as ‘offenders’ as early as ten leads to children becoming further entrenched in disadvantage, as a result of impacted education and training outcomes and increased chances of recidivism. The stigma of exposure to the criminal justice system also leads to young people having reduced opportunities for employment, increased dependence on welfare measures, and committing crimes out of necessity. The evidence demonstrates that the younger the child is at the time of the first sentence, the more likely they are to reoffend later on in life.
First Nations children already face a system stacked against them and a society plagued with pervasive systemic racism that has prolonged policies such as the current MACR. Not only do incarcerated First Nations children tend to disproportionately experience lifelong interactions with the criminal legal system, they also face further entrenched disadvantage, institutionalisation and disconnection from their community, culture and Country. This is perpetuated by a system that profiles First Nations children as offenders continuing the cycle.
The United Nations Convention on the Rights of the Child (CRC) was ratified by Australia in 1990 and sets out the full spectrum of civil, cultural, political and social rights that children are entitled to have; in addition, children have the right to special protection given their vulnerability.
In this manner, the four guiding principles of CRC are as follows:
Every five years, the Australian Government reports to the United Nations Committee on the Rights of the Child (UNCROC) on how the government is faring in protecting children’s rights. UNCROC then monitors how Australia is doing and provides recommendations to the Federal Government on how it can resolve any outstanding issues. The Committee, however, does not have any legal power to enforce these recommendations.
UNCROC has urged Australia to bring its criminal justice system into line with the UN Convention on the Rights of the Child. It encourages parties to “take note of recent scientific findings, and to increase their minimum age to at least 14 years”. In 2021, when Australian diplomats appeared before the Human Rights Council, Australia was condemned by 31 countries for its low age of criminal responsibility. The global average MACR is 12.1 years of age – well above Australia’s MACR of ten.
While the MACR for most crimes is set at a jurisdictional (state and territory) level, under the Crimes Act 1914 (Cth), the minimum age for Commonwealth offences is ten years of age.
Section 4M of the Crimes Act provides that a child under ten years old cannot be liable for an offence against a law of the Commonwealth. Section 4N(1) provides that a child aged ten 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.
Federal legislation also stipulates that children between the ages of ten and 14 years of age are found to be ‘Doli Incapax’, meaning ‘incapable of wrong’ in Latin. To be found guilty of a crime in Australia, a young person needs to be found to have committed a criminal act and have necessary criminal intention. The prosecution must bring proof that the child understood that their actions were wrong to be found guilty.
There have been few attempts to change the MACR at the federal level. On 14 October 2019, Rebehka Sharkie MP introduced the Crimes Legislation Amendment (Age of Criminal Responsibility) Bill 2019 in an attempt to increase the MACR for Commonwealth offences from 10 to 14 years of age. The Bill proceeded to the second reading stage but was not passed further.
ACT’s Barr government approved the Justice (Age of Criminal Responsibility) Legislation Amendment Bill 2023 to raise the age of criminal responsibility to 14 years old by 2025.
The territory introduced a staggered approach in increasing the age, whereby they initially bumped the age up to 12 in 2023. Under the new changes, children under the age of 14 will not be held criminally responsible, with the exception of 12 and 13 year old children who commit intentionally violent offences.
This approach to raising the age will reduce the number of young children exposed to the criminal legal system and is thus a step in the right direction. Overall, however, the staggered approach coupled with the exceptions for 12 and 13 year old children continues to contradict human rights principles and medical evidence.
Queensland is currently aligned with the federal age of criminal responsibility, at 10 years old. Mr Michael Berkman MP introduced the Criminal Law (Raising the Age of Responsibility) Amendment Bill 2021, which sought to raise the minimum age from 10 to 14 years, and transfer any children under 14 out of custody immediately.
Queensland Parliament’s Community Support and Services Committee recommended that the legislation not pass, on the grounds that Queensland had insufficient resources and programs to support offending children (which the Bill did not address), and a lack of effective diversion programs including place-based and culturally-appropriate practices.
The recently elected (2024) LNP Government campaigned on a ‘tough on crime’ platform and intends to roll out their ‘Adult time, Adult crime’ legislative changes with immediate effect, increasing the number of children exposed to the criminal legal system and incarcerated.
In August 2023, the Northern Territory became the first Australian jurisdiction to raise the age from the previous minimum age of 10 to 12 years old. The reforms were made in response to pressure following media attention on the human rights abuses in NT’s Don Dale Detention Centre and in line with the NT Royal Commission into Youth Detention recommendations.
Under this plan, children engaging in problematic behaviours that would otherwise be an offence were to be diverted to the Territory Families, Housing and Communities Department, where support services to address the underlying issues of their behaviour would be identified.
As of the 2024 Territory Election, the new Country Liberal Party (CLP) Government has walked back the prior legislative reforms that raised the age. Ten year old children will again be detained, charged, convicted, and incarcerated. This will only serve to entrench children within the criminal justice system and cause further harm to First Nations families and communities.
In New South Wales, the Children (Criminal Proceedings) Act 1987 follows federal mandates of ten years for the minimum age of criminal responsibility. There have been no changes or notices from within the NSW government with respect to raising the age.
That said, many social justice, health and other organisations within NSW have formed a coalition through the #RaiseTheAge campaign to push the state government to raise the minimum age to at least 14, arguing that current conditions are traumatising young people and entrenching social issues, with First Nations kids disproportionately affected. There are ongoing initiatives, programs and services run by these same organisations to better support children outside the criminal legal system and to assist in specialist care.
Although South Australian legislation still stipulates that the MACR be ten years, the Government has publicly stated their interest in raising the age to 12. While not wholly committing to the 14 years advocated by UN guidelines, the SA Government is exploring modifying existing processes for at-risk children to be diverted from incarceration.
An alternative diversion model has been proposed that includes a three-tiered response increasing in intensity depending on the child’s behaviour and their needs. Within this model there would be exceptions to the MACR of 12 proposed by the SA Government, allowing children under the age of 12 to be criminally prosecuted for serious offences such as murder.
In December 2023, the Tasmanian government announced its commitment to raise the minimum age of criminal responsibility from 10 to 14 without exception. Further, it committed to raise the minimum age of detention to 16 by developing alternatives to incarceration for children aged 14 and 15. Disappointingly however, the government has delayed full implementation of these commitments until July 2029.
The delayed implementation allows for children under 14 to be exposed to the criminal legal system for another five years as well as allowing greater risk for the legislation to be reversed by future governments. Whilst the Tasmanian Commissioner for Children and Young People has recommended that the minimum age be raised by 2024, the Tasmanian government has yet to make any announcement on if these changes will happen earlier than 2029.
Western Australia’s MACR matches the federal age at ten. As of 2024, there has been no attempts by the WA Government to increase the age. However, under the WA Young Offenders Act, police officers have the discretion to make referrals for young people to a Juvenile Justice Team, a multi-agency program aiming to steer children away from the criminal legal system by offering support coming from juvenile justice staff members, police officers, and community representatives.
Currently, Victorian legislation mandates that the minimum age of criminal responsibility is ten years old. In April 2023 the state Government, under Premier Daniel Andrews, committed to lifting the minimum age from 10 to 12 by the end of 2024, and raising it to 14 by 2027.
In early August 2024, Premier Jacinta Allen walked back the commitment to raise the age to 14, citing that the decision to do so was “made at a different time by a different Government with a different Premier”. The Allen Government claims that the withdrawal of support is based on ‘feedback’ from police and community support workers who stated that the state’s response to youth crime must be strengthened to ensure ‘actions have consequences’.
