The Age of Criminal Liability (Qld)

The minimum age of criminal liability is the youngest age at which a person can be charged with a criminal offence. In Queensland, the age of criminal liability is currently 10. However, the Queensland government has given its ‘in principle’ support to raising the age of criminal liability to 12. This page deals with the age of criminal liability in Queensland.

Legislation on the age of criminal liability

Under section 29 of the Criminal Code Act 1899, a person under 10 is not criminally responsible for any act or omission in Queensland. A person under 14 is not criminally responsible for an act or omission unless it is proven that young person had the capacity to know that they ought not to do the act or make the omission.

Children under 10

Children under 10 cannot be arrested, summoned, charged or found guilty of offences. A child under 10 who commits an act that would amount to an offence if done by an older person will be dealt with by parents and teachers without the involvement of the criminal justice system.

Children 10 to 14

At present, a child who is 10 or older can be charged with a criminal offence in Queensland. A young person who is charged with an offence is required to attend the Children’s Court. However, there is a rebuttable presumption that a child under 14 is doli incapax (incapable of evil). This means that when a child under 14 is prosecuted, the prosecution must adduce evidence that the child had the capacity to understand that their actions were wrong. If this is not proven, the young person must be acquitted.

Diversion

Young people who commit offences in Queensland are dealt with under the Youth Justice Act 1992. Under that act, a police officer can divert a young person away from the criminal justice system rather than bringing them before a court. When this occurs, the young person is not prosecuted and does not receive a criminal record.

One way of diverting a young person is by giving them a caution. A caution can only be given where the young person admits the offence and consents to the matter being dealt with by way of a caution. A caution may involve the child apologising to the victim of the offence where this is appropriate and both parties are willing for this to occur.

When a caution is not appropriate, a police officer may divert a young person away from the criminal justice system by referring a matter for a restorative justice process or an alternative diversion program. If a young person successfully completes the requirements of a diversionary program, they will not be prosecution for the offence, will not have to attend court, and will not receive a criminal record for the offence.

Prosecuting children in Queensland

When a person under 18 is charged with a criminal offence, they must attend the Children’s Court. If the matter is very serious, they may also have to attend a higher court following a committal proceeding. However, most young offenders are dealt with by the Children’s Court.

If the Children’s Court finds a young person guilty of an offence, it may impose one or more of a range of penalties including a good behaviour bond, a fine or a term of detention.

Changes to the age of criminal liability

Prior to 2023, the age of criminal liability was 10 in all Australian jurisdictions. In August 2023, the Northern Territory became the first jurisdiction in this country to raise the age of criminal liability to 12. Other states and territories have announced plans to make similar changes, with the ACT and Victoria both planning to raise the age first to 12, and subsequently to 14. Tasmania has announced it will raise the age to 14.

The changes come after years of pressure from lawyers, human rights organisations and the public to raise the age because of concerns about the high number of young children coming into contact with the justice system and being held in detention. A disproportionate number of Indigenous children are represented in this group.

There is a lot of evidence that children who come into contact with the justice system are less likely to complete their education and find employment and more likely to come into contact with the justice system as adults. Criminalising young people at an early age is therefore widely believed to further entrench disadvantage rather than giving marginalised communities the support they need to keep their children safe and engaged.

The Queensland government has expressed it support for raising the age of criminal liability to 12 but as yet there are no definite plans to implement this change.

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