The age of criminal liability refers to the age at which a person can be apprehended, prosecuted, and convicted of criminal acts. This age is set at 10 years old in most states and territories, as well as under Commonwealth law. However, in August 2023, the Northern Territory raised the age of criminal liability to 12. Victoria and Queensland have also announced they will be raising the age of criminal liability to 12, and subsequently, to 14.
When children under 14 are charged with a criminal offence, they may be found guilty only if the court is satisfied that they are mature enough to understand their actions and be held accountable for them. It should be noted, however, that immature age is not technically a legal defence. Rather, if the Crown intends to prosecute a young person under 14, it must demonstrate that the child possessed a sufficient level of maturity to comprehend the wrongful nature of their actions. Failure to establish this results in a verdict of not guilty.
The age of criminal responsibility is set out in the following provisions:
- In the ACT, section 25 of the Criminal Code 2002
- In South Australia, section 5 of the Young Offenders Act
- In Tasmania, section 18 of the Criminal Code Act 1924
- In the Northern Territory, section 38 of the Criminal Code Act 1983
Immature age and younger children
A child younger than the age of criminal liability cannot be arrested or charged with a criminal offence. The rationale behind this is that young children are not sufficiently mature to be held criminally responsible for their actions.
However, if a young child engages in behaviour that would be an offence if done by a person over the age of criminal liability, there may be other consequences. These include the child being punished at school or at home, Child Protection being notified, and the child being required to have counselling.
Immature age and children under 14
When a child younger than 14 is charged with an offence, the prosecution must prove that they understood that their actions were seriously wrong and not just naughty.
Failure to prove this will result in the child being acquitted based on of immature age. This is called the doli incapax (incapable of evil) rule, under which children under 14 are presumed not to be mature enough to be held criminally responsible. This presumption can be overcome by adducing evidence to the contrary.
Children over 14
If a child aged over 14 is charged with an offence, the prosecution is not required to prove that they knew their actions were wrong. They are only required to prove the young person guilty beyond a reasonable doubt in the same way as an adult.
Young offenders are subject to most of the same legal procedures as adults, but there are some additional regulations that apply to them. When dealing with a young offender, the primary aim of any sentence is their rehabilitation into a productive member of the community. In order to achieve this goal, the court may issue a range of orders, including fines, good behaviour bonds, or terms of detention. Alternatively, the court may opt to defer sentencing to enable the child to participate in a group conference or diversionary program.
In most situations where the accused is under 18, criminal cases are heard in the Children’s Court (or Youth Court in South Australia). If the offence to be dealt with on indictment, the matter goes through a committal hearing and then is referred to the County Court, District Court, or Supreme Court if the magistrate considers there is enough evidence to support a finding of guilt.
Arguments in favour of raising the age of criminal liability
In most Australian states and territories the age of criminal liability is 10, which is significantly lower than the global average age of 14. This has prompted many professionals and community members to suggest raising the age to a minimum of 12 years.
Recent cases of young people being detained and criminalized have sparked widespread public outrage, with many arguing that early criminalization can lead to further offending and increase the chances of these young people coming back into the criminal justice system as adults. Statistics show that the majority of young people sentenced to detention are from low socio-economic backgrounds, with Indigenous young people being the most overrepresented.
Advocates for raising the age argue that a low age of criminal liability perpetuates the marginalization of underprivileged youth and exacerbates disadvantage within these communities. Children involved in criminal proceedings are less likely to complete their education and secure employment.
Arguments against raising the age
Those who support the current age of criminal liability maintain that young people commit serious offences and should face appropriate consequences for their actions. They also argue that the doli incapax rule acts as a safety measure for children who are not mature enough to be held criminally accountable, as it allows them to secure an acquittal based on immature age.
If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Go To Court Lawyers.