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The Age Of Criminal Liability Sydney

The age of criminal liability is the age at which a person can be dealt with for criminal offences by the justice system. This includes being arrested, summonsed, or charged with criminal offences and found guilty or acquitted by a court. The age of criminal liability in Sydney and the rest of New South Wales is 10 (as it is in all Australian jurisdictions). The Australian age of criminal liability is considerably lower than the international average of 14. Many youth justice professionals, lawyers and activists are of the opinion that the age of criminal liability in Australia should be raised. However, at this stage there is no proposal to change the law.


Under 10 | Between 10 and 14 | Over 14

Children Under 10

Children under 10 cannot be arrested, summonsed or charged with offences in any Australian jurisdiction. This is set out in different pieces of legislation in each state and territory. 

The age of criminal liability is set at 10 because children younger than 10 are thought to be too young to be held responsible by the criminal courts for their actions.

If a child below the age of criminal liability in Sydney or elsewhere in Australia does something that would be a criminal offence if an older person did it, such as as act of violence or stealing, this would be dealt with by parents, teachers or other involved adults. 

The consequences of this may include:

  • The child being punished at home or school;
  • A notification being made to Child Protection that the child is not being adequately supervised or cared for;
  • The child being given counselling.

Children Between 10 And 14

When a child between the ages of 10 and 14 is charged with offences in Australia, the prosecution is required to show that the child understood that the act was a crime and that the behaviour was wrong. If the prosecution cannot establish this, the young person will be found not guilty on the basis of immature age. This is sometimes known as the doli incapax rule. This rule is a rebuttable presumption that children under 14 are not criminally responsible for their acts.  

Children Over 14

When a young person who is over 14 but under 18 is charged with a summary offence, the matter is dealt with in the New South Wales Children’s Court, If a child over 14 is charged with an indictable offence, the matter will be committed to a higher court for finalisation. 

The Children’s Court follows the same rules of evidence and procedures as the Local Court, which deals with adults who are charged with summary offences. However, there are some extra rules that apply to defendants who are children, for example, they must attend court together with a responsible adult – generally a parent or guardian.

Young persons who are found guilty of offences in the children’s court are sentenced under different legislation than adults who are sentenced for offences in the Local Court. The Children’s Court can impose a range of penalties just like the adult courts, including fines, supervised orders, good behaviour bonds, and terms of detention. However, when dealing with children, a court’s primary goal must be to rehabilitate the child.

Children’s Courts can also recommend a matter for diversion in appropriate circumstances. When this occurs, the matter is taken out of the criminal court system and finalised through the satisfactory completion of programs by the young person. For a matter to be dealt with through diversion the prosecution and the young person must both give their consent. 

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Arguments For Raising The Age Of Criminal Liability in Sydney

In recent years, the detention of children in Australia has caused widespread public outrage. The criminalisation of young children is believed by many to lead to further offending later in life and to an increased likelihood of contact with the criminal justice system as an adult.

Children who are charged with criminal offences and those who are sentenced to detention are disproportionately from low socio-economic groups, with Indigenous children massively over-represented. Advocates of raising the age of criminal liability in Sydney and elsewhere in Australia argue that having a low age further marginalises underprivileged kids and entrenches disadvantage in their communities. Research shows that children who come into contact with the justice system at an early age are less likely to finish school and find employment.

Medical research shows that children under 12 have a limited capacity for reflection as their brains are still not fully developed. The UN Committee on the Rights of the Child advocates an age of criminal liability of no younger than 14.

Arguments For Maintaining The Current Age Of Criminal Liability in Sydney

Supporters of the current age argue that young children commit serious offences for which they must be adequately punished and that the community must be protected from these young offenders. Opponents of lowering the age have also suggested that doing so could lead to young people using even younger children to carry out offending. 

Supporters of the current age of criminal liability also maintain that the doli incapax rule amounts to a safeguard for young offenders who are not mature enough to be held accountable and that raising the age of criminal liability is therefore unnecessary.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.  

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Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.

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