Adopted at the 2021 AGM

The NSWCCL firmly believes that the Australian community, inclusive of federal, state and territory governments, is collectively responsible for promoting and supporting the welfare of children and young people to allow them to reach their potential and transition into productive and engaged citizens. NSWCCL strongly supports the ‘Raise The Age’ campaign in calling all Australian governments to raise the age of criminal responsibility for children to 14 years.

Background

Currently, in all Australian jurisdictions, the age of criminal responsibility sits at 10 years old. Whilst the ACT Legislative Assembly and Northern Territory government has committed to increasing the minimum age to 14 and 12 respectively, legislative change is yet to occur. Placing the minimum age of criminal responsibility at 10 years old is not only inconsistent with international human rights standards (and a violation of Australia’s obligations as a party to the Convention on the Rights of the Child¹) but also runs against neuroscientific understanding of children’s brain (and social) development². Exposing primary school children to arrest, strip-search and detention can not only severely hamper their social-emotional learning³, but also increase the likelihood of further interactions with the justice system.

The Council of Attorneys-General (CAG) has considered the issue of criminal responsibility for children since 2018. However, despite receiving more than 90 submissions, CAG has not provided any findings. In 2020, 80% of young people in detention were aged 10–17, with the remainder aged 18 and older⁴. On an average night in the June quarter 2020, 798 young people were in detention. The Federal Government has subsequently deferred decision-making in relation to raising the age of criminal responsibility for children to individual states and territories, rationalising that “...the overwhelming majority of offences involving children are State and Territory, not Commonwealth, offences”.⁶

Australia’s commitment to international law and improving the justice system for the most vulnerable in the community is fundamental to its standing on the global stage. It is well established by the common law of NSW that a child between the ages of 10 and 14 is presumed not to be capable of having a criminal intention. This common law presumption of doli incapax is a presumption that can be rebutted by the prosecution calling evidence, however leading cases have shown how complex and difficult this process is when applied by the courts.

The common law presumption remains controversial as it often leads to erroneous decisions, expensive appeals, and lengthy delays in the courts, resulting in children being held in custody for extended periods of time waiting for a resolution. Many commentators will continue to differ as to the merits of the current system, however raising the age would inhibit the operation of doli incapax altogether.

In particular,

1. NSWCCL asks the CAG to consider the 90 submissions received, respond to the evidence and provide meaningful findings reflecting the urgent need to raise the age of criminal responsibility in Australia. The rights of the child are fundamental to Australia’s responsibility to its citizens as well as complying with international humanitarian obligations.
2. NSWCCL supports the contention that a minimum any lower than 14 years old for criminal responsibility perpetuates a cycle of crime and continued disadvantage, from which many children are unable to break away, and is counter-productive to maintaining safer and more connected communities. 
3. NSWCCL supports alternative sentencing and detention models for less grievous crimes (being the significant majority) and welfare-based responses to offending. Such models allow for therapeutic interventions that prioritise the often holistic needs of the child, including:
   1. health and mental health care;
   2. drug and alcohol rehabilitation support;
   3. support to re-engage with schooling;
   4. access to safe and appropriate housing and family support programs; and
   5. programs to help children reconnect with culture, community and education.
      
      Youth work programs have proven to be highly effective at ‘significantly’ reducing offending and recidivism. The economic cost of youth work programs amounts to $1,680 per year for each young person, equating to less than half the cost of traditional detention. Investment in such programs is also in line with the recommendations of the Armytage and Ogloff Review.

The minimum age for criminal responsibility should reflect the age at which a young person can safely be held to understand the criminality of prohibited conduct, satisfactorily comprehend what happens during criminal proceedings and effectively participate⁷. This cannot be said, as a general proposition, for a 10-14 year old child. The primary rationale for the minimum age of criminal responsibility should be consideration of the future livelihoods and wellbeing of young children.

NSWCCL is aware of David Shoebridge’s proposed Children (Criminal Proceedings) Amendment (Age of Criminal Responsibility) Bill 2021, which seeks to raise the minimum age for criminal responsibility, and provides in principle support to the Bill in its current form. 

1.  United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the “Beijing Rules”) Rule 4; Convention on the Rights of the Child Article 40(3); Committee on The Rights of the Child, 2007. GENERAL COMMENT No. 10 (2007) Children’s rights in juvenile  justice.<https://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf>
   [Accessed 5 October 2021] at para 32.

2. Joint Council of Social Service Network. Review on Raising the Age of Criminal Responsibility: Joint Council of Social Service Network statement to the Council of Attorneys-General. <https://vcoss.org.au/wp-content/uploads/2020/03/SUB_Joint-COSS_Age-of-Criminal-Responsibility-FINAL.pdf> at p 2.

3. McArthur, M., Suomi, A. and Kendall, B., 2021. Review of the service system and implementation requirements for raising the minimum age of criminal responsibility in the Australian Capital Territory. <https://justice.act.gov.au/sites/default/files/2021-10/Raising%20the%20Age%20-%20Final%20Report.PDF> at p 9.

4. Australian Institute of Health and Welfare, 2021. Youth detention population in Australia 2020.  <https://www.aihw.gov.au/getmedia/37646dc9-dc6f-4259-812d-1b2fc5ad4314/aihw-juv-135.pdf.aspx?inline=true> at p 5.

5. Australian Institute of Health and Welfare, 2021. Youth detention population in Australia 2020.  <https://www.aihw.gov.au/getmedia/37646dc9-dc6f-4259-812d-1b2fc5ad4314/aihw-juv-135.pdf.aspx?inline=true> at p 5.

6. Barry, H., 2021. Raising age of criminal responsibility drops off national agenda. ABC News. <https://www.abc.net.au/news/2021-04-12/age-of-criminal-responsibility-question-passed-to-states/100056812> [Accessed 6 October 2021] at p 1. 

7. Liefaard, T. and Lourijsen, M., 2018. Raising the minimum age of criminal responsibility and the importance of proper youth care. University of Liden: Criminal Law and Criminology. Link no longer available.