The ‘raise the age’ campaign aims to raise the age of criminal responsibility in Australia so that anyone under the age of 14 is not criminally liable for any act or omission they commit.
Such a move has been reflected in proposed legislative bills in various states.
But is raising the age of criminal responsibility justified, and what are the implications if we do?
The current state of the law in Australia
Currently in Australia, the Commonwealth and all states and territories set the minimum age of criminal responsibility at ten years.
Regardless of this, the “doli incapax” presumption is available in all states and territories. This means that a child between the ages of 10 and 13 is not criminally responsible for any offense unless it can be shown that the child had the capacity to know that he should not commit the offence. This places the burden of proof on the Crown. So if they accuse a 12-year-old, they need to show the child that they knew their actions were seriously wrong, rather than just mean or mischievous.
This presumption has been subject to some criticism, namely that it is complex and imposes a high demand on resources. Despite this, the case law is clear as to its interpretation. In terms of the demand for resources, this does not indicate that the presumption does not work, it only points to a distinct problem in the operation of the courts.
At a meeting in November 2021, state attorneys general across Australia supported the development of a proposal to raise the minimum age of criminal responsibility from ten to 12 years. But it hasn’t been enacted anywhere yet.
Bills have been introduced in the parliaments of New South Wales and Queensland to raise the age of accountability to 14, but these have not been supported.
Generally, arguments for raising the age are based on not having young children in custody. But the incarceration of young offenders is an outcome of sentencing – it is a separate issue from whether the child is aware that what they have done is wrong and, as such, is criminally responsible.
The “Raise the Age” campaign states:
It’s time for federal, state and territorial governments to do the right thing and change the laws to raise the age, so that children between the ages of 10 and 13 are not sent to prison.
But what is the reality of children in detention in Australia?
Since 2010, the number of custodial sentences handed down by juvenile courts has decreased significantly.
The 2021 census data indicates that there are 1,588,051 children aged 10 to 14 in Australia. In 2020-21, the Australian Institute of Health and Welfare reported that there were 444 children aged 10-13 in custody (this includes unsentenced and sentenced custody) for the year. This figure was down from 499 in 2019-20.
Queensland Police Service data showed the average daily number of children aged 10 to 13 in police watch houses was nine in 2019 and five in 2020 and 2021.
The Australian Bureau of Statistics said children aged 10 to 14 accounted for 16% of finalized juvenile court cases with a guilty outcome in 2020-21. Of these defendants, 95% received a non-custodial sentence, meaning they were not imprisoned. Only 73 defendants, or 2%, received a custodial sentence, whereby they were sent to a correctional facility such as a prison or juvenile detention center.
Data from the Victorian Sentencing Council indicates custodial sentences for young offenders were at their lowest level since 2004-05, with just 124 orders in 2020-21.
Data from the Queensland Sentencing Advisory Council showed that between 2005-2006 and 2018-2019, detention orders accounted for just 2.9% of sentences handed down to young offenders in trial court and 17.6% in superior courts (which hear the most serious cases).
The reality is that the number of detained children is extremely low.
The impact on victims of crime
What is the place of victims of crime in such a proposal to raise the age?
Cases like the murder of James Bulger in 1993, for example, would go unpunished. Bulger, who was two, was abducted by two ten-year-olds from a shopping center in the UK. They then tortured him for several hours before crushing his skull, inflicting 42 wounds in total. Both were convicted of murder and served eight years in prison.
From the victim’s perspective, it is difficult to argue that there should be no consequences for the abusers’ actions. Indeed, victim impact is one of the principles to consider when sentencing children in Queensland.
If the age of responsibility is raised, what capacity will there be to properly and effectively deal with young people who would otherwise offend? How would victims be held accountable under such a regime and how would community safety be ensured?
Raising the age will not solve the causal effects of crime
As Queensland Attorney General Shannon Fentiman said during the debate on the bill to raise the age of criminal responsibility in that state:
Simply changing the criminal law does not reflect the underlying complexity of juvenile delinquency and why children as young as ten commit these offences.
These complex issues include substance abuse, domestic violence, mental health, disengagement from education, lack of adequate housing, and poor parenting.
Addressing risk and protective factors at the individual, family, social and community levels is essential to combating offending behaviour.
Many of these issues were present in the case of an 11-year-old boy convicted of the manslaughter of Perth man Patrick Slater, who was stabbed to death with a screwdriver in 2016.
He was imprisoned for four years. The boy was held in pre-sentence custody for nearly two years due to an inability to find a responsible person to care for him.
Raising the age will not prevent such a crime from being committed, nor its causes – it just means that no one will be held accountable.
We should not raise the age of criminal responsibility
Raising the age is a response that removes blame for bad behavior but does not necessarily address the underlying causes of youth crime. It is by addressing these issues that young people can actually help young people not to offend.
How we punish young people who transgress is another matter. Understanding the consequences of your actions is also a separate issue from whether what you did was right or wrong.
We must be careful not to weaken our criminal justice system in a way that will end up disappointing our young people by creating a generation without any sense of personal responsibility.