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Review of age of criminal responsibility

Review by Council of Attorneys-General

Background

Currently, the age of criminal responsibility is 10 years of age as legislated in each state, territory and the Commonwealth. For the purpose of legal proceedings, this requirement is accompanied by the presumption of doli incapax that children aged 10 to under 14 years are criminally incapable unless it can be proven otherwise.

In recent years, the issue of Australia’s age of criminal responsibility has been highlighted through international and domestic scrutiny, and continues to be examined by a range of experts and community representatives.

The United Nations Committee on the Rights of the Child has recommended that Australia consider raising the age of criminal responsibility to an internationally acceptable level. For example, the minimum age of criminal responsibility is commonly around 14 years in the European Union. In New Zealand, the criminal age is 14 years for most crimes but is lower for certain other very serious offences.

The Royal Commission and Board of Inquiry into the Detention and Protection of Children in the Northern Territory, a recent youth justice inquiry in New South Wales and Queensland’s report from the Special Advisor on youth justice issues have considered matters of raising the age of criminal responsibility and a minimum age at which children can be detained.

  • The Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (November 2017) recommended [27.1) that relevant legislation in the Northern Territory is amended to provide that the age of criminal responsibility is 12 years; and that youth under 14 years of age may not be ordered to serve a time of detention other than where the youth has been convicted of a serious and violent crime, presents a risk to the community, and the sentence is approved by the President of the proposed Children’s Court.
  • The ‘Atkinson’ Report on Youth Justice (June 2018) recommended [68] that the Queensland Government support in principle raising the minimum age of criminal responsibility to 12 years subject to: national agreement and implementation by state and territory governments, a comprehensive impact analysis, and establishment of needs based programs and diversions for 8 to 11 year olds engaged in offending behaviour.
  • The Parliament of New South Wales, Legislative Assembly Committee on Law and Safety Report 2/56 (September 2018), The Adequacy of Youth Diversionary Programs in New South Wales recommended (5) that the NSW Government conduct a review, in consultation with all relevant stakeholders, to examine whether the current age of criminal responsibility, and the age at which a child can be detained, should be increased in NSW.

In April 2018, the Northern Territory Government responded to the Royal Commission including a commitment to raising the minimum age of criminal responsibility to 12 years following the introduction of a single Act for child safety and well-being and once sufficient measures are in place to prevent and address criminal behaviour within this age cohort. The response also includes that the single Act will include restrictions on placing children younger than 14 years of age in youth detention. Legislation is expected within three years from the announcement date.

The Queensland Government response (December 2018) to the Atkinson Report included a commitment to consider recommendations related to the age of criminal responsibility, pending any recommendations in relation to the age of criminal responsibility arising from national consideration of this issue. The NSW Government response (August 2019) to the Law and Safety Committee inquiry noted that NSW is participating in a national working group examining whether the age of criminal responsibility should be raised from the current age of 10 years, and the NSW Government will further consider the matter once the working group has concluded its work.

On 23 November 2018, the Council of Attorneys-General agreed that “it would be appropriate to examine whether to raise the age of criminal responsibility from 10 years of age” and that a “working group would be established to review this matter”. An interjurisdictional working group of officials was established to review the age of criminal responsibility and make recommendations to the Council in that regard. The Working Group is chaired by the Department of Justice, Western Australia and includes representation from each state, territory and the Australian Government. Refer to the Working Group’s Terms of Reference.

At their recent meeting on 29 November 2019 Attorneys-General:

  • Noted that there is strong interest in the review of the age of criminal responsibility, and recognise the importance of the views, knowledge and expertise of interested stakeholders and individuals.
  • Agreed that the Working Group undertake targeted and public consultation as soon as practicable.
  • Noted that the Working Group will continue to progress the review, taking into account stakeholder contributions, and will provide a report with recommendations to the Council of Attorneys-General in 2020.

Accordingly, interested persons are invited to comment on a series of questions of relevance to the Working Group’s review of the age of criminal responsibility.

Invitation for public submissions

Interested persons are invited to submit written responses on all or any of the following matters:

  1. Currently across Australia, the age of criminal responsibility is 10 years of age. Should the age of criminal responsibility be maintained, increased, or increased in certain circumstances only? Please explain the reasons for your view and, if available, provide any supporting evidence.
  2. If you consider that the age of criminal responsibility should be increased from 10 years of age, what age do you consider it should be raised to (for example to 12 or higher)? Should the age be raised for all types of offences? Please explain the reasons for your view and, if available, provide any supporting evidence.
  3. If the age of criminal responsibility is increased (or increased in certain circumstances) should the presumption of doli incapax (that children aged under 14 years are criminally incapable unless the prosecution proves otherwise) be retained? Does the operation of doli incapax differ across jurisdictions and, if so, how might this affect prosecutions? Could the principle of doli incapax be applied more effectively in practice? Please explain the reasons for your view and, if available, provide any supporting evidence.  
  4. Should there be a separate minimum age of detention? If the minimum age of criminal responsibility is raised (eg to 12) should a higher minimum age of detention be introduced (eg to 14)? Please explain the reasons for your views and, if available, provide any supporting evidence.
  5. What programs and frameworks (eg social diversion and preventative strategies) may be required if the age of criminal responsibility is raised? What agencies or organisations should be involved in their delivery? Please explain the reasons for your views and, if available, provide any supporting evidence.
  6. Are there current programs or approaches that you consider effective in supporting young people under the age of 10 years, or young people over that age who are not charged by police who may be engaging in anti-social or potentially criminal behaviour or are at risk of entering the criminal justice system in the future? Do these approaches include mechanisms to ensure that children take responsibility for their actions? Please explain the reasons for your views and, if available, provide any supporting evidence or suggestions in regard to any perceived shortcomings.
  7. If the age of criminal responsibility is raised, what strategies may be required for children who fall below the higher age threshold and who may then no longer access services through the youth justice system? Please explain the reasons for your views and, if available, provide any supporting evidence.
  8. If the age of criminal responsibility is raised, what might be the best practice for protecting the community from anti-social or criminal behaviours committed by children who fall under the minimum age threshold?
  9. Is there a need for any new criminal offences in Australian jurisdictions for persons who exploit or incite children who fall under the minimum age of criminal responsibility (or may be considered doli incapax) to participate in activities or behaviours which may otherwise attract a criminal offence?
  10. Are there issues specific to states or territories (eg operational issues) that are relevant to considerations of raising the age of criminal responsibility? Please explain the reasons for your views and, if available, provide any supporting evidence.
  11. Are there any additional matters you wish to raise? Please explain the reasons for your views and, if available, provide any supporting evidence.

How to make a submission

The closing date for comments is COB Friday 28 February 2020.

Written submissions or comments (only) will be considered and should be titled “Council of Attorneys-General – Age of Criminal Responsibility Working Group review”.

Electronic copies are preferred and should be sent to LegPolicy@justice.wa.gov.au

Or by post to:

The Chair
Age of Criminal Responsibility Working Group
c/- Strategic Reform Division
Department of Justice
GPO Box F317
PERTH WA 6841

Confidentiality

Submissions received by the Department will be treated as public documents (and may be published on this website).

If any parts of your submission contain confidential information – this must be clearly identified (on the cover page – and the relevant parts) in your submission. If confidentiality is sought please specify in reasonable detail the basis for the claim.

Please be aware of requirements regarding the Freedom of Information Act 1992 (WA) and Department of Justice processes (please refer to the Department's website at https://department.justice.wa.gov.au/F/freedom_of_information.aspx).


Last updated: 13-Jan-2020

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