12 July 2022

The Justice Committee

Committee Secretariat
Justice Committee
Parliament Buildings
Wellington

Submitted via email: justice@parliament.govt.nz

RE: Petition of Christine McCarthy, which requests: That the House of

Representatives increase the minimum age of criminal responsibility to 16 years old
Dear Committee members,
Thank you for contacting the Human Rights Commission to request a written submission on
the petition of Christine McCarthy. As the Commissioner responsible for children’s rights at
the Human Rights Commission, I broadly support the petition to increase the minimum age
of criminal responsibility as this will further advance the human rights of children in New
Zealand under the Convention on the Rights of the Child. I invited Judge Frances Eivers to
co-sign this letter, which she agreed to because of the importance of this issue for children
and young people in the criminal justice process, especially mokopuna Māori and Pacific
who are disproportionately represented and affected.

The current minimum age of criminal responsibility in New Zealand of 10 years old is too
low. It is out of step with international human rights standards1 and is not aligned with
updated understandings of children’s brain development and capacity.2

This issue engages a number of human rights under the Children’s Convention including:
 Respect for children and young people’s rights to dignity and privacy (art 40)
 Non-discrimination (art 2)
 Children’s evolving capacities (art 5)
 Treatment consistent with age and desirability of reintegration (Art 40)
 Best interests must be primary consideration (Art 3)
 Duty to hear and take account of views of the child or young person in all matters
affecting the child (art 12; 40)
 Right to a fair trial, with procedures and institutions specially adapted to the needs
and circumstances of the child or young person (art 40)
 Custody should be used only as a last resort and for the shortest appropriate period
(art 37)
 In custody to be treated humanely and kept apart from adult prisoners (art 37)
 Sanctions and outcomes to be consistent with the promotion of the child’s sense of

1 The Commission noted that the minimum age of criminal responsibility in New Zealand under the Crimes Act
1961 remains below international human rights standards in its submission to the Committee on the Rights of the
Child on the List of Issues Prior to Reporting (March 2020) at [28].
2 In addition to the information provided in the Petition of Christine McCarthy, see for example It’s never too early,

never too late: A discussion paper on preventing youth offedning in New Zealand, Office of the Prime Minister’s
Chief Science Advisor, 12 June 2018 and the research cited by the UK Houses of Parliament Parliamentary
Office of Science and Technology in its June 2018 research briefing PostNote number 577.
 dignity and worth…and appropriate to well-being (art 40).3

The Committee on the Rights of the Child have recommended that New Zealand raise the
age of criminal responsibility in line with its General Comment 10 in its last two reviews of
New Zealand in 20164 and in 2011.5 New Zealand was also recommended to raise the
minimum age of criminal responsibility as part of the Universal Periodic Review in 2019,6
which the government agreed to consider.7

The Commission has previously made a submission on this issue in January 2018 as part
of a submission to the Committee on the Rights of the Child in response to its Draft General
Comment No. 24 on children’s rights in juvenile Justice. In this submission the Commission
supported the draft general comment’s revision of the absolute minimum age of criminal
responsibility from 12 years to 14 years old.8

The Committee on the Rights of the Child in General Comment 24 recommended that
States increase the minimum age to at least 14 years, but in the same paragraph went on
to highlight the developmental and neuroscience evidence on adolescent brains regarding
the capacity for decision making and commending states that had a higher minimum age,
such as 15 or 16 years.9

New Zealand has been seen as having a world-leading youth justice system, with a rights-
based focus on non-criminalisation and rehabilitation. Indeed, a human rights approach is
required under s 5 of the Oranga Tamariki Act. It follows that the age of criminal
responsibility in New Zealand should also fully reflect international human rights standards.

Moving the minimum age of criminal responsibility to 16 years old would have structural
implications on the youth justice system, which begins at 14 years. However, this should
not be a justification for not raising the minimum age to 16 years. The Youth Justice system
can be reorganised, indeed it has been reorganised in the past, when the minimum age
was reduced from 14 to 12 years and returned to 14.

The reduction to 12 years in the Youth Court jurisdiction caused differential approaches
with the criminal justice system to homicide, raising concern regarding fairness and justice.
Given the differential approaches between the criminal justice system and the youth justice
system, it is recommended that the two minimum ages of these systems align. The family
court jurisdiction has the capacity to respond to changes in the youth justice system.

While these factors may present some administrative challenges for the reasons set out
above, they do not justify denying the realisation of the human rights of children.

In considering the appropriate minimum age for criminal responsibility, the Committee may
consider other minimum ages of capacity within the law. Under the civil jurisdiction, children
and young people under the age of 18 are presumed to lack the requisite capacity to enter

3 Nessa Lynch, Ian Lambie, Andrew Beacroft and Tamara Wilson-Tasi, “Four Urgent Changes for the Youth
Justice System” (October 2021) available: https://www.wgtn.ac.nz/__data/assets/pdf_file/0008/1976084/Four-
Urgent-Law-Changes-for-the-Youth-Justice-System.pdf
4 CRC/C/NZL/CO/5 at [45(a)].
5 CRC/C/NZL/CO/3-4 at [56(a)].
6 A/HRC/41/4 at [122.69-122.70].
7 A/HRC/41/4/Add.1 at [27].
8 Human Rights Commission, Submission to the Committee on the Rights of the Child: Draft General Comment

No. 24 on children’s rights in juvenile justice (January 2018).

9 At [22].
into most contracts, unless proven otherwise.10 In the family court, the minimum age to have
legal standing is 16 years. If the reasoning for the above-mentioned minimum ages in civil
law and family law is about legal capacity for decision making, these minimum ages should
align with criminal responsibility.
There is increasing evidence to indicate that youth crime does not happen in a vacuum and
is linked to breaches of human rights for those children and youth that offend. Children and
youth who offend are more likely to come from experiences of violence, poverty, substance
abuse, and discrimination.11

There is increasing knowledge of the prevalence of disabilities, neuro-diversities and

cognitive difficulties amongst children and young people in the criminal justice system.12
Cognitive difficulties may arise from traumatic brain injury, abuse and neglect or
neurodisabilities such as autism, ADHD, Fetal Alcohol Spectrum Disorder (FASD),
intellectual disability and mental illness.13 These neurophysiological and/or socio-economic
disadvantages impact the neurophysiological development of children and their decision-
making capacity.

The criminalization of children disproportionately impacts Māori tamariki and rangatahi.14

Te Tiriti o Waitangi sets out the obligations that are required by the government to enable
Māori to uphold and implement their own modalities of tino rangatiratanga, so that Māori
are able to carry out their own tikanga approaches (including laws) to offending by tamariki
and rangatahi. The current system does not honour the promises set out in Te Tiriti and
does not allow for authentic tino rangatiratanga to be properly carried out and honoured.

Evidence indicates that a child’s contact with the criminal justice system leads to more
offending and that there are significant human rights impacts of criminalization on
children.15 The way to address offending by children and youth is not to punish them under
the criminal justice system, but rather to address the underlying causes of the offending.
This includes addressing issues relating to poverty, violence, discrimination, mental illness
and health.

There were concerns raised by some of the Committee members in response to this
petition in the oral hearing of 19 May 2022, namely that raising the minimum age of criminal
responsibility would not enable justice for victims of crimes by children and youths, noting
recent ram raid events. The Commission recognises the rights of victims to justice,
however, there are other ways to achieve justice for victims of child and youth offending
other than criminal responsibility.16

Justice for victims is better achieved through reconciliation and apology including
restorative justice, a Family Group Conference or culturally appropriate reconciliation

10 Section 86, Contract and Commercial Law Act 2017.

11 Petition of Christine McCarthy, at [37].
12 Nessa Lynch, Ian Lambie, Andrew Beacroft and Tamara Wilson-Tasi, “Four Urgent Changes for the Youth

Justice System” (October 2021) available: https://www.wgtn.ac.nz/__data/assets/pdf_file/0008/1976084/Four-

Urgent-Law-Changes-for-the-Youth-Justice-System.pdf
13 Ibid.
14 Ibid; Petition of Christin McCarthy, at [48].
15 Petition of Christin McCarthy, at [41]-[49].
16 The youth justice system also makes specific provision for the rights and interests of victims. See Oranga

Tamariki Act, s 208(2)(g).

processes.17 These approaches still enable the child or youth to be held accountable, take
responsibility for behaviour, undertake appropriate rehabilitation and take action to repair
the harm while concurrently enabling healing and the restoration of mana for victims and
their families.18 The fact of a kanohi-ki-te-kanohi meeting well managed and attended by
victims and offenders is powerful and in many instances, is healing for them both.

It is for the above reasons we support the petition. We would welcome the opportunity to
appear before the Justice Committee to further discuss this submission.

Yours sincerely

Paula Tesoriero MNZM

Disability Rights Commissioner | Kaihautū Tika Hauātanga
New Zealand Human Rights Commission | Te Kāhui Tika Tangata

Judge Frances Eivers

The Children’s Commissioner | Te Kaikōmihana mō ngā Tamariki

17 Nessa Lynch, Ian Lambie, Andrew Beacroft and Tamara Wilson-Tasi, “Four Urgent Changes for the Youth
Justice System” (October 2021) available: https://www.wgtn.ac.nz/__data/assets/pdf_file/0008/1976084/Four-
Urgent-Law-Changes-for-the-Youth-Justice-System.pdf
18 Judge Sir David Carruthers (2012) “Restorative Justice: Lessons from the Past, Pointers for the Future” 20

Waikato Law Review 1 available http://www.nzlii.org/nz/journals/WkoLawRw/2012/1.pdf, in particular note at p.

14 the 2002/2003 evaluation where 92 per cent of victims indicated they were pleased they took part in
restorative justice for moderately serious offending. Similarly high rates were found in a 2008/2009 evaluation.