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Under 12 is too young: Raising the age of criminal responsibility

The current minimum age of criminal responsibility in Australia is out of step with international law, and evidence about children’s brain development clearly demonstrates that children under 12 years lack the necessary capacities for full criminal responsibility.

VCOSS along with a group of prominent legal, human rights and social services organisations have signed an open letter, facilitated by Jesuit Social Services, calling on state and federal Attorneys-General to lift the  age of criminal responsibility to 12 years of age.  This was released alongside a discussion paper, Too much too young: Raise the age of criminal responsibility to 12.

There are several arguments as to why Australian jurisdictions should raise the age of criminal responsibility. First, The UN Committee on the Rights of the Child considers the age of 12 to be the minimum acceptable age for criminal responsibility. Most European countries have an age of criminal responsibility of 14 years or higher. Responses to offending require a focus  on preventing harm and fostering behavioural development which is more likely to prevent further offenses in later adolescence and adulthood.

Second, there is growing evidence in children’s brain development to indicate that children under the age of 12 years lack the necessary components of criminal responsibility, including both cognitive development and moral awareness. [1] The Deakin Law Review suggests that increasing the age of criminal responsibility “would reflect the standards emerging in international law and would protect the least mature (children) from the negative consequences of early contact with the criminal justice system”.[2]

Responding to crimes committed by eight or nine year olds is the responsibility of welfare authorities, therefore extending this responsibility to include older child offenders is feasible.[3] This is particularly pertinent given that the number of children aged 10 and 11 years involved in criminal behaviour is small.

Finally, offending among young children is strongly associated with entrenched disadvantage, and 78 per cent of Victorian child offenders aged 10-12 being known to child protection. Children who offend are also more likely to have a range of risk factors such as exposure to family violence,  abuse and neglect, disability, mental illness, drug and alcohol abuse, exposure to crime, academic failure or bullying and homelessness.[4] Aboriginal[5] young people are over-represented in the youth justice system, particularly at younger ages. For example, Aboriginal young people aged 10 to 14 were 6–10 times more likely than non-indigenous people to be proceeded against by police during 2010–11.[6]

Involvement in the criminal justice system at a young age often causes further harm and places young people at risk of becoming chronic, long-term offenders.[7]

In all Australian jurisdictions the statutory minimum age of criminal responsibility is 10 years.

The minimum age is intended to be mitigated by the principle of doli incapax, which assumes that children aged 10 to less than 14 years are ‘criminally incapable’ unless proven otherwise. One of the key principles of Australia’s youth justice systems is the notion that young people should be placed in detention as a last resort and for the shortest appropriate period of time. [8]

The United Nations Committee on the Rights of the Child states that “a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable”. [9] The committee encourages countries to increase their minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and encourages countries to increase it to higher ages, such as 14 or 16. An international study of 90 countries revealed that the most common age of criminal responsibility was 14 years and that over two thirds of countries had a minimum criminal age of 12 or higher.[10]

Rather than criminalise children, Victoria’s approach to children aged 10-12 who commit offences should instead aim to:

  • respond to the developmental and welfare needs of young offenders
  • ensure responses to problematic behaviour seek to foster the behavioural development of the child, and
  • engage children in a way that prevents further harm and that enables them to actively participate in responses to their problematic behaviour.[11]

Responses also need to address the causes of their offending by tackling issues including family violence, substance use, housing, mental ill-health, education and training needs. This should be accompanied by actions to address entrenched and persistent disadvantage in the community.

 

[1] Jesuit Social Services, Too much too young: Raise the age of criminal responsibility to 12, October 2015.

[2] Bradley, L 2003, ‘The Age of Criminal Responsibility Revisited’, Deakin Law Review, 8 (1), Deakin University, Victoria, pp. 86-29. Available at: http://138.25.65.22/au/journals/DeakinLawRw/2003/4.html

[3] Bradley, L 2003, ‘The Age of Criminal Responsibility Revisited’, Deakin Law Review, 8 (1), Deakin University, Victoria, pp. 86-29. Available at: http://138.25.65.22/au/journals/DeakinLawRw/2003/4.html

[4] Jesuit Social Services and Effective Change Pty Ltd, Thinking Outside: Alternatives to remand for children, Jesuit Social Services, Richmond,  2013, Available at: http:// www.jss.org.au/files/Docs/policy-and-advocacy/ publications/Thinking_Outside_Research_Report_-Final_ amend_15052013.pdf; Australian Institute of Health and Welfare 2013, Young people aged 10 – 14 in the youth justice system 2011 – 2012, AIHW, Canberra, p. vi. Available at: http://www.aihw.gov.au/publication-detail/?id=60129543944

[5] The term Aboriginal refers to both Aboriginal and Torres Strait Islander young people

[6] Australian Institute of Health and Welfare 2013, Young people aged 10 – 14 in the youth justice system 2011 – 2012, AIHW, Canberra, p. vi. Available at: http://www.aihw.gov.au/publication-detail/?id=60129543944

[7] Australian Institute of Health and Welfare 2013, Young people aged 10 – 14 in the youth justice system 2011 – 2012, AIHW, Canberra, p. vi. Available at: http://www.aihw.gov.au/publication-detail/?id=60129543944

[8] Australian Institute of Health and Welfare 2013, Young people aged 10 – 14 in the youth justice system 2011 – 2012, AIHW, Canberra, p. 3. Available at: http://www.aihw.gov.au/publication-detail/?id=60129543944

[9] United Nations, Convention on the Rights of the Child 2007, ‘General Comment No.10: Children’s rights in juvenile justice’, Committee on the Rights of the Child, 44th Session, No. CRC/C/GC/10. p.11, Available at: http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf

[10] Hazel, N, Cross-national comparison of youth justice, Youth Justice Board for England and Wales, United Kingdom, 2008, p. 7Available at: http://dera.ioe.ac.uk/7996/1/Cross_national_final.pdf

[11] Jesuit Social Services, Too much too young: Raise the age of criminal responsibility to 12, October 2015.