Age of Criminal Liability in Brisbane
The minimum age of criminal liability is the age at which a person can be arrested or summonsed for, charged with and found guilty of a criminal offence. The age of criminal liability in Brisbane and the rest of Queensland is currently 10. This is stated in section 29 of the Criminal Code Act. However, the Queensland government has given its ‘in principle’ support to raising the age to 12.
The age of criminal liability is currently 10 in most Australian states and territories. However, several jurisdictions have announced an intention to raise the age of criminal liability to 12 or 14. In August 2023, the Northern Territory raised its age of criminal liability to 12.
What if a child under 10 does something wrong?
When a child under 10 does something wrong, it does not amount to a criminal offence. This is because children under 10 are considered to be too young to be held responsible for their actions at law in the way that older people are.
If a child under 10 commits a violent act, steals or does something else that would amount to an offence if done by an older person, this is generally dealt with via punishment by parents or teachers, or by through provision of counselling to the child in order to teach them appropriate behaviour.
The age of criminal liability does not mean that there are no consequences for younger children when they misbehave. It just means that these consequences are delivered outside of the criminal justice system.
Children under 14 and offences
Under the Criminal Code Act, children under 14 are not criminally responsible for acts, unless it is proved that they were capable of understanding that the act was ‘wrong.’ This means that while children over ten can be held criminally responsible for offences, the law recognises that many children between 10 and 14 are insufficiently mature to understand the difference between right and wrong and should not be held criminally responsible. If a child between 10 and 14 is charged with a criminal offence, but the prosecution cannot convince the court that the child had capacity, they will be found not guilty based on the defence of ‘immature age.’
If a child aged 10 or older is found to have had the capacity to know they ought not to have done an act, they will be found guilty of an offence and sentenced by the Children’s Court.
How are juvenile offenders dealt with?
Offenders who are under 18 are dealt with by the Queensland Children’s Court. The Children’s Court has the power to impose a range of sentencing orders including a term of youth detention, a community service order or a good behaviour bond. When the Children’s Court is sentencing a young person, it is required to structure a sentence that focuses on the child’s rehabilitation as a higher priority than other sentencing principles such as deterrence. This means that the sentencing exercise is done somewhat differently when the offender is a juvenile. The Children’s Court in Queensland is governed by the Youth Justice Act 1992.
Arguments for raising the age of criminal liability in Brisbane
The revelations of human rights abuses in the NT’s Don Dale Detention Centre in 2016 focused attention on youth justice in Australia. The minimum age of criminal responsibility in Australia is lower than the international average age, which is 14. The criminalisation of children from an early age, and the resulting incarceration of kids as young as 10, is widely felt to lead to poor outcomes for young people who come into contact with the youth justice system.
A recent report by Queensland Family and Child Commission recommended that the age of criminal liability in Brisbane and the rest of Queensland should be higher, suggesting children below the age of 12 are not mature enough to be held responsible by the criminal courts and that criminalising children that young further victimises underprivileged children.
In Queensland, Indigenous children are hugely over-represented in youth detention, as are children who are poor, homeless, in out-of-home care or mentally ill. A low minimum age of criminal responsibility can exacerbate existing social and economic disadvantage for these young people.
Adolescence is a period of significant brain development, which involves both risks and opportunities. Positive experiences during adolescence lead to a young person thriving; negative experiences lead to them suffering. Premature criminal punishment can be counterproductive as it can inhibit a young person’s ability to develop into a functional member of society. There is a very high rate of recidivism among offenders who are first charged with offences while under 14.
It is widely felt that the criminal justice system fails to address the needs of young people and harms children’s long-term prospects.
Arguments for retaining the current age of criminal liability in Brisbane
People opposed to raising the age of criminal liability argue that serious offences are committed by children and that a ‘hard line’ approach should be taken to youth crime. They argue that raising the age would lead to older children using younger kids to carry out offending because of a perception that they can ‘get away with it’.
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