Raising The Age of Criminal Responsibility

Slades and Parsons wish to express disappointment in the Victorian Government’s recent departure from their prior commitment to raise the age of criminal responsibility. 

In 2023 the Government had pledged to raise the age from 10 years to 12 years of age by 2024, with an added commitment to raise the age to 14 by 2027. In 2024 the Government announced it would be abandoning this legislative reform.

Under the Children, Youth and Families Act 2005 (Vic) a child under the age of 10 cannot be held to have committed an offence, however there is no legislation which affords the same protection to children over the age of 10. 

It is worth noting that Australia has one of the lowest ages of criminal responsibility in the world, with the global average sitting at 14 years of age.

Why Should the Age of Criminal Responsibility be Raised?

Limited Capacity in Children

Research into the brain development of children at this age has shown that the brain has not developed to a point where they can be deemed capable as having the necessary intent to commit a crime. It also indicates that they lack the necessary capacity to engage with the justice system and effectively navigate its processes.  This includes the child’s capacity to make decisions about legal matters, such as pleading guilty or not guilty, and an understanding of how these decisions may impact them. 

Experience has also shown that the chance of a child reoffending increases the earlier that child enters the criminal justice system. Providing support and rehabilitative services to address problematic behaviours may better assist in strengthening long term community protection by placing greater focus on minimising repeated behaviour and the likelihood of reoffending.

Vulnerability of At-risk Groups

Another important factor to consider when assessing the impact of the criminal age of responsibility is how these laws disproportionately affect groups who are already vulnerable members of the community.  

Statistics show that Indigenous Children are 17 times more likely to be incarcerated than non-Indigenous children, a statistic which corresponds with the disproportionate rates of Indigenous adults in custody. Children with disabilities are also more likely to be incarcerated than the general population, especially those with psychological or psychosocial issues.   

These statistics urge a reconsidered approach to how children who are already at risk are managed and how community resources may be better allocated to services that are able to support children rather than punish them. 

Doli Incapax

For children who are aged 10 and not yet 14, a legal principle known as Doli Incapax applies. This principle states that children of this age cannot be held criminally responsible unless the Prosecution can establish that the child knew that their conduct was morally wrong at the time. The Prosecution relies on evidence and the Court is required to take several factors into account when deciding whether this principle applies in each particular case. 

Although this principle provides some protection to children it does not go far enough, as this presumption can be rebutted.  Children may have also already been unnecessarily exposed to the justice system before a decision is made regarding Doli Incapax, for instance by way of Police arrest, interview or in some cases remand.  

The decision to not pursue legislative reform in raising the criminal age of responsibility is inconsistent with what we know about the capacity of children to understand their own behaviour and the processes which govern our justice system. 

Raising the criminal age would provide greater protection to children who are statistically already more likely to need support services and help minimise the likelihood of adult offending.