The Age of Criminal Responsibility in Australia

The Age of Criminal Responsibility in Australia

Every year, about 600 children under the age of 14 are incarcerated in Australian prison cells. Children between the ages of 10 and 17 make up 13% of the offender population in Australian prisons.

It probably comes as no surprise that older teens engage in crime. Teens tend to be impulsive and energetic, two factors that in combination might inspire “snatch-and-run” thefts or acts of bullying that end in assaults. Teens are also trying to shape an identity, and experimentation with illicit drugs is often part of that experience.

As parents know, younger children might be even more impulsive and energetic than teens. Society is more forgiving of younger children because it takes time and experience to learn the difference between right and wrong. A 4-year-old who throws an expensive vase might be surprised when it breaks. A 17-year-old who throws an expensive vase might be trying to break it.

Drawing the line between kids who deserve to be punished for misbehaviour and kids who are too young to be held accountable for their conduct is not easy to do. Parents make those decisions on a daily basis as they gauge the level of a child’s development. However, when society punishes a child by bringing the child into the criminal justice system, the government must draw a bright line between children who are too young to be charged with an offence and children who are old enough to be held responsible for criminal conduct.

That line is drawn at the “age of responsibility.” Every government in every nation, whether state or federal, sets its own age of responsibility. Somewhat controversially, the age of responsibility in Australia is lower than the worldwide average.

Australian Age of Criminal Responsibility

Every state and territory in Australia has defined age 10 as the age of criminal responsibility. Children younger than 10 cannot be charged with an Australian crime.

The age of criminal responsibility, like the age at which an individual is allowed to drive, vote, marry, or drink alcohol, can be a controversial issue. The worldwide average age of criminal responsibility is 12. England and Wales, like Australia, set the age of criminal responsibility at 10.

Fortunately, not every 10-year-old who engages in criminal behaviour will be arrested and charged. Police and prosecutors have discretion in deciding whether to bring children into the criminal justice system. A shoving match between adults that might result in a criminal prosecution may well be treated as unworthy of prosecution when the behaviour involves children.

Doli incapax

In addition, every Australian state and territory follows a legal rule known as doli incapax. That doctrine presumes that children of a certain age are incapable of committing a crime, even if they are old enough to be held criminally responsible. In all Australian states and territories, the presumption applies to children who have reached the age of 10 but have not attained the age of 14.

The doctrine of doli incapax does not prevent children who are between the ages of 10 and 14 from being charged with a crime. Instead, the doctrine creates what lawyers refer to as a rebuttable presumption. The presumption is that the child cannot form the intent to commit the crime. To win a conviction, the prosecution must overcome (or rebut) that presumption by presenting evidence that the child knew that what he or she did was seriously wrong, not just naughty. This is sometimes known as “guilty knowledge.”

Of course, reading the child’s mind to discover what the child believed about his or her actions is impossible. Yet it isn’t enough to prove that the crime was serious and to argue that any child who commits such a serious crime must have known it was serious. The child’s ability to appreciate the wrongfulness of his or her conduct must be proved by evidence.

Evidence might consist of proof of the circumstances surrounding the offence. Evidence that the child tried to conceal the offence or ran away might suggest that the child knew the conduct was serious, although it might merely suggest that the child wanted to avoid parental disapproval. After all, children who are naughty often take steps to escape punishment.

Proof of guilty knowledge usually consists of proof that the child was sufficiently intelligent and mature to appreciate the wrongfulness of his or her conduct. That evidence often comes from people who know the child (such as teachers) and from people who have evaluated the child (such as psychologists). The focus, however, must be on the accused child, not on the level of maturity that is common to children of the same age.

Other relevant evidence might include explanations that the child gave for his or her behaviour, the child’s home environment, and the child’s criminal history (if any). As a general rule, the closer the child is to age 14, the easier it will be to rebut the presumption that the child is incapable of committing a crime.

Prosecuting Australian Children

It is sometimes said that a child who commits an adult crime should be prosecuted as an adult. That adage is nonsense. Except for a relative handful of juvenile offences (like truancy), all crimes are adult crimes in the sense that they can be committed by adults. That fact has no bearing on whether the law should recognise that children are not adults.

Occasionally, a well-publicised instance of a young offender committing a horrendous crime leads to calls for “reform,” usually by abandoning the doctrine of doli incapax. As we all know, emotional decisions made in the heat of the moment are typically bad decisions. Calls for “reform” have consistently been rejected by cooler heads when legislative policy is made.

It is now more obvious than ever that children are not the intellectual or emotional equivalent of adults. Brain research has established that the human brain does not reach full development until the age of 25. Impulse control, sensation seeking, and decision-making are much different in an adult of 25 than in a child of 10. The child’s lessened ability to foresee and appreciate consequences and to control behaviour is not the child’s fault; every child suffers from the same incapacity.

The notion that a child of 13 is just as responsible for committing a crime as an adult of twice that age is contrary to what scientists have learned about the developing brain. Criminal justice policy should be based on science and reason, not on the mistaken belief that children are just as culpable as adults.