Victoria is set to become the latest jurisdiction to raise the age of criminal responsibility after cabinet ministers approved the plan on April 24.
Children will no longer be held criminally responsible until they reach the age of 12, although the Andrews government appears to have pushed back on campaigners and activists who wanted the age raised to 14, in line with United Nations recommendations.
The plan, announced on Wednesday ahead of the national Attorney-Generals meeting on Friday, intends to raise the age of criminal responsibility to 12 with no exceptions before increasing that age to 14 by the year 2027. However, the Andrews government is said to be considering whether there could be exceptions made at this age for crimes such as murder or terrorism.
Attorney-general Jacyln Symes says govt needs the next three years to ensure alternative models are in place before raising the age of criminal responsibility to 14. "If we are in a position to do that sooner than that is something we can look at," she says.
— Benita Kolovos (@benitakolovos) April 26, 2023
The news has already proved controversial, with legal representatives, law enforcement, and youth and Indigenous advocacy groups arguing that the changes are either too extreme or not sufficient enough.
The Royal Australasian College of Physicians (RACP) has said the move to cap the increase at 12 is “deeply concerning.”
“Many children in the youth justice system have significant neurodevelopmental disabilities, and other physical and mental health needs, which are compounded by contact with the youth justice system and incarceration,” RACP president and paediatrician Dr Jacqueline Small said.
“Children under 14 years may not have the level of maturity and cognitive function to be considered criminally responsible”.
At the same time, at least one former detective has said that the changes are “sheer lunacy” and could lead to a “spike” in crime with older criminals recruiting younger ones to assist with illegal activities as they won’t be able to be charged.
Across the country, most jurisdictions consider a child to be criminally responsible for their actions from the age of 10, something that campaigners have long argued is far too young.
There has been talk of changing the laws at a federal level since at least 2018 when the Council of Attorneys-General met to discuss the idea. They signed off on a federal review of the laws in 2018 but agreed that it would be a state decision in 2021.
In response, and in the face of serious domestic and international pressure, multiple states and territories have made moves to change their legislation in this area.
Age of Criminal Responsibility in Australia
Currently, federal laws mean a child above the age of 10 can be tried and charged for committing a crime in a similar way to an adult. This is the case across all Australian states and territories except the NT, with changes in the works in the ACT and now in Victoria.
In comparison with the rest of the world, 10 is very young for a person to become criminally liable and, in 2019, the UN Committee on the Rights of the Child recommended all countries increase the minimum age of criminal responsibility to at least 14 years.
Even much less economically advanced countries like Afghanistan, Egypt, Saudi Arabia, and Lybia all have a higher age of criminal responsibility. In 2021, 31 UN countries called on Australia to up its own age limit.
Raising the age of criminal responsibility to 12 years is a crucial step forward in helping protect children by keeping them out of the justice system.
We continue to call on all govts to raise the age to 14 ASAP to ensure every child is able to access the support they need. https://t.co/dQyjUbSZUy
— UNICEF Australia (@unicefaustralia) April 26, 2023
Children between the ages of 10 and 14 are sentenced through children’s courts, where reform and rehabilitation is a key focus of sentencing. The principle of doli incapax is also relied upon across the country, whereby children under the age of 14 are considered ‘criminally incapable’ unless proven otherwise. However, the 2019 Children’s Rights Report found that the concept is not routinely applied in practice.
In 2022, there was an average of 818 young people in detention per night in Australia. 44 of these were children aged 10 to 13, the vast majority of whom were sentenced and merely awaiting the outcome of a court decision.
Despite making up just 3% of the overall population, 50% of young people in custody are Aboriginal and Torres Strait Islanders. As such, the policy of locking up young people has long been criticised for appearing to disproportionately affect Indigenous young people and there have long been calls to raise the age of criminal responsibility on the basis that it perpetuates racial inequalities.
On a recent visit to the NT, the Australian Human Rights Commission’s National Children’s Commissioner, Anne Hollonds, said that 10-year-old children are being jailed for stealing food.
“This is unspeakable, I just simply cannot understand how we do it in this country,” Hollonds said.
“Obviously, a 10-year-old stealing food is hungry and is in need of care and protection, but was locked in a cell on his own at Don Dale.”
In recent years, however, Australia’s long-held position as a pariah when it comes to locking up children slowly seems to be changing.
Age of Criminal Responsibility NSW
In NSW, the age of criminal responsibility is currently 10.
At the Attorneys-Generals meeting on Friday, Victoria is expected to call on other states and territories to follow it in raising the age of criminal responsibility.
NSW, along with Queensland, have already said that they would consider these recommendations as well as those of the standing council of attorneys general who issued a draft report in December last year stating it supports an increase to 14.
In 2022, more than 60,000 people in NSW signed a petition to increase the age.
Age of Criminal Responsibility VIC
In VIC, the age of criminal responsibility is currently 10.
Since the re-election of Dan Andrews as Premier of Victoria, criminal justice reform has been something of a focus.
Andrews stated in February of this year that he was prepared to go it alone and increase the age of responsibility in the absence of national consensus on the issue.
That decision has now been followed through, although no immediate timeline for implementation has been finalised.
Critics have said that the government has ignored legal and medical advice by increasing the age by only two years and that it has done so out of fear.
Michael Stanton, President of the civil liberties group Liberty Victoria, said it was a “weak decision from a government still paranoid about being wedged on law and order instead of committing to evidence-based reform”.
“The Victorian government has ignored repeated calls from First Peoples and medical and legal experts,” he said. “We must raise the age to at least 14, with no exceptions.”
Age of Criminal Responsibility ACT
In the ACT, the age of criminal responsibility is 10.
The ACT government have however confirmed that they will be introducing legislation this year to raise the age from 10 to 12 and then from 12 to 14 in 2025.
“This transition period allows the government to put in place the necessary range of social support services needed to support children who might otherwise enter the criminal justice system,” said ACT Attorney General Shane Rattenbury.
“This is a significant and complex change, being led by the ACT, and we will implement it thoughtfully and effectively”.
Age of Criminal Responsibility SA
In SA, the age of criminal responsibility is 10.
South Australia has been “considering” the move to raise the age for some time and there appears to be general consensus that the age should be raised
Last year, the Greens introduced a private members bill to be debated in the state legislature to that effect but it has yet to pass — despite the fact that the SA Attorney-General has said that he is committed to doing so.
Age of Criminal Responsibility WA
In WA, the age of criminal responsibility is 10.
Western Australia, the nation’s richest state, incarcerates its Indigenous population at a higher rate than anywhere else while also cutting funding to youth justice services.
Although there was suggestion that Western Australia might consider raising the age, Premier Mark McGowan has previously shot down the idea, claiming it is an “activist” demand.
“I want to protect the public and rehabilitate the detainees. Some of the activists really only believe in rehabilitation,” he said.
Age of Criminal Responsibility NT
In the NT, the age of criminal responsibility is 10.
However, the Labor government in power in the NT announced last year that it would raise the age of criminal responsibility to 12 by the end of its term in government in 2024.
They passed legislation in November that would do just that once it is operational in the latter half of this year. It will see police refer children who have been found to be engaging in what would otherwise be considered ‘criminal activity’ to behavioural change programmes. Parents of these kids will also be referred to intensive parenting courses.
NT Attorney General, Chansey Paech, said at the time that the evidence overwhelmingly suggests that the earlier a child enters the criminal justice system, the greater their chances of reoffending.
“Punitive measures are not a deterrent for 10- and 11-year-olds – in fact, it is more likely to increase behavioural problems and offending,” he said.
Age of Criminal Responsibility QLD
In QLD, the age of criminal responsibility is 10.
Last year, a private members bill was introduced in Queensland Parliament to raise the age to 14, following the recommendations of the Community Support and Services Committee report.
The bill was ultimately blocked by a Parliamentary Committee that stated that there was “more work to be done before the minimum age of criminal responsibility is raised in Queensland”.
According to data from the Australian Insitute of Health and Welfare, Queensland incarcerated more young people than anywhere else in the country from 2018 to 2022. On average, there were 241 people aged 10-17 in detention per night in the state, almost a quarter of the entire national detention figures.
Age of Criminal Responsibility TAS
In TAS, the age of criminal responsibility is 10.
In January last year, Tasmania became the first state to commit to raising the age to 14. After the planned closure of the Ashley Youth Detention Centre in 2024, the state government has said they will proceed with the changes.
New sentencing and diversion options are set to come into place by that date, with preparations already underway for how the new system will work.
Raise the Age
The Raise the Age campaign continues to build pressure on governments to make the legal changes called for and appears to be having a significant impact. Even the government seems to agree that 10 years old is far too young.
Raising the age of criminal responsibility will also help to address the disproportionate imprisonment of First Nations young people. #RaiseTheAge 2/2 pic.twitter.com/Mxu8sUo1UW
— Alastair Lawrie (@alawriedejesus) April 17, 2023
An extensive report into the age laws prepared for the Council of Attorney Generals was finalised in 2020 but to this date remains unpublished. An ABC Four Corners investigation managed to get hold of the report which categorically states that the age of criminal responsibility should be 14.
“The Commonwealth, State and Territory governments should raise the minimum age of criminal responsibility to 14 years of age, without exception,” to reads.
A majority of justice departments across the country who participated in the report appear to be in agreement on this issue.
The report also found that children under the age of 14 likely don’t have the cognitive capacity to understand the consequences of their actions and that locking up young people appears to cause lifelong trauma and, conversely, more crime.
Commissioner Mick Gooda, who led the Royal Commission into the Don Dale youth detention centre, has said that Australia continues to lock up young people because of “law and order” politics that panders to fear in the community.
“We’ve got a recipe for making kids worse,” he said. “We’ll be considered barbarians by future generations.”
Related: We Need to Raise the Age of Criminal Responsibility But 12 Is Not Enough
Related: Three Decades After the Royal Commission Into Aboriginal Deaths in Custody, What’s Changed?
Read more stories from The Latch and subscribe to our email newsletter.