The Age of Criminal Liability

The age of criminal liability is the minimum age at which a person can be dealt with by the criminal justice system. This includes being arrested or summonsed, charged with offences and found guilty or acquitted of a criminal offence. The age of criminal liability in all Australian states and territories is 10. The Australian age of criminal liability is considerably lower than the international average (which is 14). Many youth justice professionals, lawyers and activists in Australia believe the age of criminal liability should be raised but at this stage there is no proposal to make any changes to the current law.

Children under 10

Children under 10 cannot be arrested, summonsed, charged or found guilty of any criminal offence in any Australian jurisdiction. This is set out in different legislation in each state and territory. 

This is because children younger than 10 are considered too young to be held responsible by the courts for their actions.

If a child under the age of criminal liability does something that would amount to a criminal offence if an older person committed it, such as assault or shop lifting, this generally dealt with informally, by parents, teachers or other involved adults. 

The consequences of this may include:

• The child being punished at home or at school;
• A notification being made to the relevant government department in the child’s state or territory that the child is being inadequately supervised or cared for;
• The child being sent to undergo counselling.

Children between 10 and 14

When a child between 10 and 14 is charged with an offence in Australia, the prosecution must show that the child understood that the act they committed was a crime and that the behaviour was wrong. If prosecution cannot establish that the child knew this, the young person will be found not guilty on the basis of immature age. This is known as the doli incapax rule. The doli incapax rule is a rebuttable presumption that a child younger than 14 is not criminally responsible for offences. 

Children over 14

When a young person aged over 14 but under 18 is charged with a summary criminal offence, the matter is dealt with in the Children’s Court, which is the juvenile version of the Magistrates Court. If the offence is an indictable offence, the matter will be committed to a higher court to be finalised there. 

The Children’s Court follows the same procedures and rules of evidence as the Magistrates Court. However, there are some additional rules that apply to offenders who are children, such as the requirement that they attend court accompanied by a responsible adult, such as a parent or guardian.

A young person who is found guilty or pleads guilty in the children’s court is sentenced under different legislation than an adult who is sentenced by the Magistrates Court. The Children’s Court can impose most of the same penalties as the adult courts, including fines, good behaviour bonds, supervised orders and terms of detention. However, when dealing with children, the primary goal of sentencing is to rehabilitate the young person.

Children’s Courts also have the option of recommending a matter for diversion in certain circumstances. When this occurs, the matter is taken out of the court system and finalised through the young person’s satisfactory completion of programs. For a matter to be dealt with by way of diversion the consent of the prosecution and of the young person must be given. 

Arguments for raising the age of criminal liability

In recent years, the criminalisation and detention of young people in Australia has caused public outrage. The criminalisation of children at a young age is believed by many to lead to further offending by the young person later in life and to an increased likelihood of their coming into contact with the criminal justice system and the prison system as an adult.

The young people who are charged with criminal offences and those who are sentenced to youth detention are disproportionately from low socio-economic groups, with Indigenous children being massively over-represented. Advocates of raising the age of criminal liability argue that having a low age of criminal liability further marginalises underprivileged children and entrenches disadvantage. Research shows that children who are dealt with by the justice system at a young age are less likely to complete their education and find employment.

Medical research shows that children below the age of 12 have a limited capacity for reflection as their brains are still developing. The UN Committee on the Rights of the Child advocates an age of criminal liability of 14 or higher in al countries.

Arguments for keeping the age of criminal liability at 10

Supporters of the current age of criminal liability maintain that young people commit serious criminal offences and must be adequately punished and that the community needs to be protected from young offenders. Opponents of lowering the age of criminal liability have also suggested that this could lead to young offenders using even younger children to carry out offences.

Supporters of the current age of criminal liability also believe that the doli incapax rule amounts to a safeguard for young people who are not mature enough to be held accountable for their misdeeds and that it is therefore unnecessary to raise the age.

If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Armstrong Legal.