#RaisetheAge and the Criminal Responsibility of Children

RaiseTheAge
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#RaiseTheAge

#RaiseTheAge is a campaign urging for the age of criminal responsibility in Australia to be raised. Before outlining the reasons for this petition, however, it is important to understand the current law surrounding the age of criminal responsibility.

 

When can a young person be held liable for an offence?

10 years and below: not liable 

The age of criminal responsibility in Australia is 10. This means that children under the age of 10 cannot be found guilty of a criminal offence.

In NSW the age of criminal responsibility is outlined in section 5 of the Children (Criminal Proceedings) Act 1987 (NSW).

 

10 years – 14 years: presumed incapable of committing a crime 

Children aged between 10 and 14 are presumed to lack the capacity to commit a criminal offence. This presumption is called doli incapax.

If the prosecution wants to charge children in this age bracket, they will need to rebut the presumption of doli incapax.

 

Rebutting the Presumption 

In short, to rebut the presumption the prosecution will need to prove that the accused child knew that their actions were “seriously wrong” as opposed to naughty or mischievous – a high threshold.

The presumption can be rebutted if the following can be shown:

  • The prosecution must rebut the presumption of doli incapax as an element of the prosecution case.
  • The child knew the act was seriously wrong as opposed to naughty.
  • The evidence relied upon by the prosecution must be strong and clear beyond all doubt or contradiction.
  • The evidence to prove the accused’s guilty knowledge, as defined above, must not be the mere proof of doing the act charged, however, horrifying or obviously wrong the act may be.
  • The older the child is the easier it will be for the prosecution to prove guilty knowledge.

 

The prosecution must rebut the presumption of doli incapax as an element of the prosecution case

The presumption of doli incapax is not a defence; it is an element of the prosecution case. If the prosecution fails to call evidence to rebut the presumption there is no case to answer. If at the conclusion of the prosecution case there is evidence that could satisfy a jury, the hearing or trial will proceed.

Ultimately, it is for the Magistrate or jury to determine at the end of the case whether this element has been established beyond a reasonable doubt. That is, it is for the Crown to establish to the criminal standard that the alleged offender had the capacity which the law requires.

 

14 years and above: liable

Young people aged 14-17 can be held criminally liable for their actions.

 

Review of the Minimum Age of Criminal Responsibility 

At present, there are almost 600 children aged between 10 and 13 in detention in Australia, with more than 60 per cent Aboriginal or Torres Strait Islander children.

Australia has been criticised by the United Nations for what is internationally regarded as a low age of criminal responsibility.

The UN is of the position that 12 years of age should be the absolute minimum age for which a child can be held criminally responsible for their actions.

The Council of Attorneys-General (CAG) Working Group is reviewing the age of criminal responsibility and make recommendations regarding the age of criminal responsibility.

The result of this has been a national campaign, #RaiseTheAge, and petition to raise the age of criminal responsibility from 10 to 14, in line with other jurisdictions around the world. This has been backed by a coalition of legal, medical and social justice organisations including National Aboriginal and Torres Strait Islander Legal Services, Australian Indigenous Doctors Association, Change the Record, Human Rights Law Centre, Law Council of Australia, Amnesty International Australia, Australian Medical Association, Royal Australasian College of Physicians and Public Health Association of Australia.

 

Arguments for #RaiseTheAge

The National Children’s Commissioner has made recommendations about the age of criminal responsibility to the UN Committee on the Rights of the Child as part of its consideration of Australia’s periodic report on the implementation of the Convention on the Rights of the Child (CRC).

 

While it is recognised that offending by young children should not go unaddressed, criminalising children for their behaviour at such a young age is largely ineffective at preventing future offending behaviour. This is also counter to human rights.

 

Whilst it is acknowledged that raising the age of criminal responsibility alone will not solve the problem of youth offending, it will allow for new approaches to be adopted in dealing with the young offenders and can be focused on their welfare, preventing future offending and reducing the risk of recidivism.

 

This would also provide a means of reforming the youth justice system to apply children’s rights, particularly for Aboriginal and Torres Strait Islander children and those with a disability who are overrepresented in our youth justice statistics.

 

The #RaiseTheAge petition aims to bring awareness to the need for reform regarding the criminality of children and promote a system that prevents future offending by giving children the best possible chance by supporting and building the capacity of families, engaging and supporting kids to stay in school, addressing family violence and housing instability, and identifying and responding to health and disability needs.

 

If you or someone you know needs advice or representation for an alleged criminal offence, contact the team at Hamilton Janke Lawyer 24 hours a day, seven days a week by calling 4038 1666.

 

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