KEY ELECTION ISSUES
WHAT IS THE DIFFERENCE BETWEEN 10 AND 14? BRITTANY ARMSTRONG, SOLICITOR, ABORIGINAL LEGAL RIGHTS MOVEMENT
W
hat can happen in the four years of a child’s life between the ages of 10 and 14? Unfortunately, for a number of already disadvantaged children, a 10th birthday party can be held in police cells when they have engaged in the exact same behavior that they were doing at age nine. Before turning 10 years old, a child would have never been to a youth detention centre or brought before the Court. Referring to a case study of the Aboriginal Legal Rights Movement, a 13-year-old child may have spent as many as 27 separate periods in police custody without a single conviction or finding of guilt. This is not an issue of who is naughty and who is not. This is a sociological issue. Approximately 65 percent of incarcerated children aged between 10 and 13 in Australia are Aboriginal or Torres Strait Islander.
DOLI INCAPAX In South Australia, the Young Offenders Act 1993 (the Act) identifies that “a person under the age of 10 years cannot commit an offence”.1 The presumption of doli incapax is a common law principle that is utilised in all Australian States and various other countries. It presumes that a child under the age of 14 years lacks the capacity to be criminally responsible for his or her actions.2
20 THE BULLETIN February 2022
Unlike a criminal defence, the onus is on the prosecution to rebut the presumption of doli incapax. If the prosecution fails to adduce evidence capable of proving that the child actually knew that what they were doing was seriously wrong (rather than merely mischievous or naughty), the child is incapable at law of committing the charged offence and must be acquitted.3 To rebut the presumption, the prosecution must prove beyond reasonable doubt that notwithstanding the child’s age, they were capable of forming the requisite mens rea in relation to the alleged offence.
RAISE THE AGE In 2017, the Australian Law Reform Commission published a Report entitled: Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples. When reviewing the cross-over between outof-home-care and detention, particular emphasis was placed on juvenile detention being a key driver of adult incarceration. The Report outlined that a 2005 study found that 90% of Aboriginal and Torres Strait Islander youths who appeared in a children’s court went on to appear in an adult court within eight years – with 36% of these receiving a prison sentence later in life.
Also in 2017, the Royal Commission into the Protection and Detention of Children in the Northern Territory recommended that the minimum age level of criminal responsibility be raised to 12 on the basis that it would reduce the number of children brought before the courts and it would better reflect current understanding of brain development.4 The Commission also recommended retention of the rebuttable presumption of doli incapax for those aged 12–14. On 31 January 2019, the Law Council of Australia and Northern Territory Law Society sent out a media release, essentially supporting the recommendations of the Commission. The Law Council considers the minimum age of criminal responsibility should be at least 12 years, subject to: the rebuttable presumption that children aged between 10 and 14 years are incapable of committing a criminal act remaining in place; and no child under 14 years should be sentenced to detention, except in the most serious cases, in line with the NT Royal Commission’s recommendations.5 The ‘Raise the Age’ campaign is a national campaign to raise the age of criminal responsibility from 10 years to 14 years old. It is based on the ongoing call from the United Nations Committee on the Rights of the Child that the minimum
