The Reason for Rasing Criminal Age of Responsibility in Australia

Australia's current age of criminal responsibility poses large scale problems that conflict with the interest of protecting children. Raising the criminal age of responsibility and eliminating doli incapax would result in a significant drop in juvenile detainment and create a considerably more fair and reasonable system for children facing the consequences of their actions.

The criminal age of responsibility in Australia is 10 years of age. However, the idea of doli incapax refers to the legal presumption that a child under the age of 14 but over 10 is incapable of forming mens rea, being the intention or knowledge of a crime. Therefore, without the intention being formed to commit a crime, the youth ought not to be prosecuted for a criminal offence. As a rebuttable presumption in law, to prosecute a child over 10 years of age but under 14 years of age, the child must be indisputably aware that they had ‘malicious intent’ or a ‘guilty knowledge that he was doing wrong’. In addition to proving the child committed the crime, the prosecution must also prove the child was aware that their actions were wrong. For example, threatening the victim before or during the criminal act can be used to prove the child is criminally aware of their actions. On the other hand, insight into the child's home life, education and overall well-being generally display reasoning and explanation to the actions displayed. Doli Incapax is in place to limit juvenile detention so prevalent in Australia. According to Bering et al ‘locking up these kids during these crucial years affects their development’, highlights the impact that incarcerating children have when they are young. Incarceration can detrimentally alter their development into adulthood and it should be limited to reduce the risk of re-offending. This could be because the prefrontal cortex of a child’s brain has not yet fully developed leading to their rational thinking being impaired as a result. The high court has also criticised the approach of doli incapax stating it is ‘apt to suggest that children mature at a uniform rate’.

Australia is following the UK regarding its approach to managing criminal activity committed by children.. The idea of doli incapax clearly states that the likelihood of a child under 14 being criminally responsible is restricted. Doli incapax has many faults and the abolishment of this legal presumption as well as the raising of the criminal age of responsibility would create a more just system. Australia would also be following the advice of the United Nations Committee on the Rights of the Child which continue to criticise Australia and other countries that are yet to raise the age of criminal responsibility to 14 years.

The current age of criminal accountability is having adverse effects on the future success of children who have been found to commit crimes. When children are exposed to the criminal justice system at a young age, they are less likely to 'grow out of crime,' and the unfavourable social response is more likely to direct these children back into a pattern and cycle of crime and potentially serve more jail time. In most circumstances, the criminal offending starts as minor offending but can then escalate into more indictable offences. However, as maturity levels rise it is seen that the behaviour that placed these youth in detention centres is periodical and the risk of them reoffending in some cases is little. The most prevalent ages for first-time offenders are between 12 and 16, however, the most common age for first-timers being apprehended by police is between the ages of 15 and 17. Following on from this, those with a few encounters with the criminal justice system generally do not re-offend, however, those who have contact with the children's courts are at significantly higher risk of re-offending . Taking this into account, it is clear a limited number of these offenders are no longer protected by doli incapax and will therefore face the repercussions of these actions, irrespective of their childish behaviour and immaturity. The current overrepresentation of youth in the criminal justice system is a growing problem, therefore the idea of introducing rehabilitation for offenders rather than incarceration would be incredibly beneficial.

Raising the criminal age and abolishing doli incapax would create a far more fair and just system for juveniles who are faced with the repercussions of poor behaviour. There have been several examples of flaws in the doli incapax law. An 11-year-old was charged for manslaughter. If the child was one year younger, they would not have been charged and this highights the key flaw in doli incapax.

Although these instances of young people committing indictable offences are extremely rare, recent research has emerged stating that an 8-year-old has the same capability as a 12 to 16-year-old in the sense of being able to decipher right from wrong in criminal conduct and classic childish disobedience. There have been several debates, both for and against raising the age of criminal responsibility but doli incapax has been referred to as “a serious disservice to our law” as it is classified as outdated and no longer relevant to raising the age of criminal consent. Following on from this, the White Paper, ‘No More Excuses’ declared that in regards to the doctrine of doli incapax it was ‘contrary to common sense as those young offenders that are placed in juvenile detention facilities are more than likely to re-offend and with their impressionable minds, education and treatment would be far more likely to be effective in guiding those juveniles onto a better path. The idea of abolishing doli incapax, although with the finished and the criminal age of responsibility should be raised to the age of 12.