Introduction

This briefing paper addresses the proposal in the NSW parliament for increasing the
minimum age of criminal responsibility from 10 years to 14 years of age.

I support this proposal for increasing the minimum age of criminal responsibility from 10
years to 14 years of age. Through this briefing paper, I would like to impress upon the NSW
parliament that Children below 14 years do not have the mental faculties to commit crimes knowing
fully well the consequences of their actions and with the intent to cause harm. Also the present
system results in disproportionately targeting of marginalized in the society which is unjust. I would
further elaborate on my reasons for not supporting this proposal in the following sections. I would
also provide certain recommendations on how to deal with children below age 14 who would
commit crimes. The recommendations deal with supporting such children and turning them in to
productive citizens instead of condemning them to a life of crime.

Background

In Australia, according to commonwealth criminal code, the minimum age of criminal

liability is 10 years and children below that age are presumed not to have criminal responsibility for
their offenses i.e. they are doli incapax. According to section 7.2 of the criminal code, “a child aged
10 years or more but under 14 years old can only be criminally responsible for an offence if the child
knows that his or her conduct is wrong”. For children between 10 to 14 the doctrine of doli incapax
still exists and hence to pin criminal responsibility on them, the prosecution has to prove beyond a
reasonable doubt that the child knows at the time of doing the action that it is morally wrong and
that the act id distinct from a mere being mischief or naughtiness[ CITATION The20 \l 1033 ].

The rationality of youth governance that I am proposing is ‘welfarism’. I think that the
government instead of enmeshing children’s lives with the criminal justice system should tend to the
complex needs of those children who are flirting with criminal life and bring them back in to
mainstream society by providing support so that they can become productive and contributive
member of the society. The corresponding strategy should be aimed at ‘restoration’ of their lives in
to pro-social pathways. Australian parliament needs to shift to reflect the ideals of exclusionary and
punitive towards restoration and inclusionary strategy of youth governance[ CITATION Joh06 \l
1033 ].

Research and analysis of the proposal

Abilities/Intention:

Traditionally in legal doctrines, there needs to be two elements for fixing criminal
responsibility. One is the action itself, where a person has to commit an action which contravenes an
existing legal prohibition. The second is the mental intent of the crime or ‘mens rea’[ CITATION
Joh85 \l 1033 ]. So, the question really is, ‘at what age do children can accurately be described as
having ‘mens rea’ to commit crime?’. Societies from ancient times to modern times have been
wrestling with the notion of fixing the age for personal responsibility of children’s criminal actions.
There are a number of issues which affect the way children act in criminal circumstance which
include their cognitive development, moral development, ability to control their impulses, ability to
think about the future consequences of their actions before doing them etc. All these factors affect
children’s ‘mens rea’ in the actions that they do. The present Australian laws are of the opinion that
some children above age 10 and below the age 14 have the cognitive abilities, moral thinking ability,
impulse control abilities and ability to think about future consequences, related to their actions and
if prosecution proves that these children have such ability, they must have personal criminal
responsibility for their actions.

Previous research by psychologists like Piaget and Kohler in last century showed that young
children are able to distinguish between right and wrong when given an abstract criminal context
and hence laws were made to reflect this. However, recent research shows that children in real life
when placed in difficult circumstances, display low levels of decision competency and high levels of
moral disengagement[ CITATION NCN12 \l 1033 ]. Especially when placed in anti-social situations,
their decision-making capabilities is severely impaired due to their immaturity compared with
adults[ CITATION ECa00 \l 1033 ]. They also lack the skills necessary to think in a long-term
perspective weighing actions and consequences and so are incapable to control their
impulses[ CITATION Sco08 \l 1033 ]. Based on this research we can say that young children have less
mental and moral capacity to be judged to have ‘mens rea’ for their actions like adults do.

Reformation:

Apart from debating the question of abilities and intentions to commit crime, we should also ask
whether it is in the best interest of the children and the society in long term, to label children as little
as 14 as criminals and the harm that will do to them for the rest of their lives. Many researchers
have shown that the young people who come in contact with the criminal justice system early in
their life tend to stay offending, adopt a criminal life and become increasingly enmeshed in the
criminal justice system[ CITATION NSW20 \l 1033 ]. Being labelled a ‘criminal’ at a young age results
in a self-fulfilling prophecy as the child starts thinking and acting like a criminal and starts to play a
‘criminal’ role in society[ CITATION Wal89 \l 1033 ].

Overrepresentation of marginalized:

[ CITATION Bar09 \l 1033 ] argues that there is a good correlation between economic poverty and
social disadvantage with the rate of incarceration children. Because of the unjust child
criminalization legislations, the people who have the most economic and social needs are being
punished instead of providing them help. This is especially true in the case of young children
belonging to indigenous populations. According to a 2015 Amnesty International report, Indigenous
young people are 26 times more likely to be in detention compared to non-indigenous young people
and more than 60% of all children of age of 10 years and 11 years in 2012-13 are indigenous
youth[ CITATION Amn15 \l 1033 ]. To reduce the incarceration rates of indigenous youth, Amnesty
International calls for raise in the criminal responsibility age. There are also other factors such as
care-criminalisation, where children placed in OOHCs(out of home cares) are criminalised because of
being placed in such OOHCs [ CITATION Kat181 \l 1033 ].

Other considerations:

As noted by [ CITATION Com07 \l 1033 ], having two minimum ages for criminal
responsibility is confusing and leaves much to the discretion of the judge/court in awarding
punishment to the child, which may lead to discrimination. Hence the UN committee asks states to
remove the provision where the prosecution has to prove that the child knew about the ‘wrongness’
of the act and fix a single minimum criminal responsibility age of at least 12.

Australia should also fulfil its international obligations under UN Convention on the Rights of the
Child (‘CRC’), which asks states to adopt at least 12 years as the minimum age for criminal
responsibility(MACR) and encourages states to adopt 14 or 16 years as the MACR[ CITATION
Com07 \l 1033 ], so that educational and welfare measures can be used to address youth offending
rather than making children enter criminal justice system at a very tender age.

Other western countries such as Canada and Ireland have raised the MACR to 12 years of age, while
the average MACR in European states in 14 years and Australia should also join in them to prevent
children from getting enmeshed with the criminal justice system[ CITATION Tho15 \l 1033 ].

Recommendation and conclusion

From the above research and analysis of the proposal, it is clear that the Australian
parliament must raise the minimum age of criminal responsibility to 14 years from present 10 years.
Instead of punitive approach, they should adapt a restorative approach which reforms the children
and weans them from a life of criminality. Some of the recommendations to reform and welfare
measures:

 Train police and care givers, so that they understand and empathize with such young
children. This reduces the rate of criminalization and care-criminalisation of children
 Try to avoid children from being labelled as a criminal or deviant so that they do not fall into
the trap of self-fulfilling prophesy
 Involves community responsibility in taking care of children in communities
 Invest in education and training of low income and marginalized children such as indigenous
children and children with special needs, so that their self esteem is restored, and their
decision-making capabilities are enhanced

There is overwhelming evidence that shows the huge negative effects of criminalisation of
children at young age on those young people and on society with increase in crime rate. Also, these
policies affect the marginalized and those in most need and punishing such people instead of
providing welfare for them, is unjust. Though it may not be politically convenient, Australian
parliament must heed to research evidence and raise the minimum age for criminal responsibility to
14 years of age.
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