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What’s the difference between 10
WHAT IS THE DIFFERENCE BETWEEN 10 AND 14?
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What 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
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
age of criminal responsibility should be at least 14, having regard to the medical evidence of a young person’s development6 .
In February 2021, the ACT Government commissioned an independent review on the steps required to support the major reform of raising the age of criminal responsibility from 10 years to 14 years old.
In July 2021, the Australian Government appeared before the United Nations Human Rights Council for the Universal Periodic Review (5-yearly occurrence). 31 member countries supported a recommendation to Australia to raise the age of criminal responsibility from 10 to 14.
Despite this, the Australian Government rejected the call stating that it will ultimately be a decision for each jurisdiction to make.
In November 2021, Australia’s Attorneys-General agreed to formulate a plan to raise the age of criminal responsibility from 10 to 12 years old. This was met with backlash by many supporters of the ‘Raise the Age’ campaign, stating it is still too young.
The Honourable David Shoebridge MLC introduced a bill into the NSW parliament on 11 November 2021 headed Children (Criminal Proceedings) Amendment (Age of Criminal Responsibility) Bill 2021 (the Bill). The purpose of the Bill is to raise the age of criminal responsibility to 14 years.
Mr Shoebridge MLC has aptly stated “at ages 10 and 11 children are still losing their baby teeth, they don’t have their pen licences let alone drivers licenses”; “Some of these young people spend their first night away from their families in a prison cell”.
In his Second Reading Speech, Mr Shoebridge MLC stated7:
The bill is in fact very simple. It amends section 5 … to raise the age of criminal responsibility from 10 years to 14 years. This accords with the global consensus. Other nations have a minimum age of criminal responsibility of 14, 16 or 18 years. It is based on understandings of cognition and development that show it is simply not possible for younger children to meaningfully understand the implications of their actions or how they relate to the criminal law and social norms. There is significant—indeed, overwhelming— scientific evidence that 14 is the bare minimum for this, but even that is likely to be too low.
Schedule 3 of the Bill inserts section 5A to the Act to provide that children under the age of 16 years are not to be remanded awaiting proceedings nor imprisoned as a penalty for a criminal offence. On this point, Shoebridge MLC said: That does not take any other punitive or diversionary measures off the table. It does not mean there are no consequences. It simply means that the consequence of prison—one which we know is particularly harmful and associated with reoffending, alienation and a future downward spiral in a young person’s life—is not an option for the courts. We know that the young people who do go to prison are not the ones with the expensive lawyers. They are not the ones with the wraparound services available to address issues they may be having. They are some of the most disadvantaged young people in the State. Putting them through the criminal justice system and incarcerating them only entrenches that and cuts off alternative pathways. The medical evidence is clear: Child prisons hurt all children. What hurts an 11 year old or a 13 year old also hurts a 15 year old. Given half the children in prison are on remand, the bill also provides that remand should not be an option for children under 16 years.8
There is a group in society who argue that young offenders ought to be incarcerated to “keep the community safe” and “pay for what they have done”. We need to remember the extensive amount of taxpayer dollars that are being spent on the process of arrest, bail/remand, court, and lawyers. Furthermore, does this group understand the often childish ‘offending’
that is being committed? Many young people are being charged for doing things that are a product of their environment. They are stealing things because they have seen their families steal things, or because they are hungry and have no way of getting food. They are putting petrol in a car that is being driven by their father, mother or brother. They are driving a car because of family pressure. They are breaching their bail because they do not want to be at home. These are not criminals. These are children. Unfortunately, many of these are Aboriginal children.
The presumption of doli incapax provides a safeguard for our young people which, more often than not, results in the charges against the young person being withdrawn. When you acknowledge that, it becomes apparent that a number of young people have been taken from their community, arrested, placed into youth detention centres and brought before the Court on numerous occasions for childish behavior that does not result in a conviction.
It is widely accepted that children between the ages of 10 and 14 do not have the requisite capacity to commit a criminal offence. Accordingly, it is unsurprising that these children barely understand the Court process. The process outlined above is doing nothing to “teach them a lesson” or “ensure the safety of the community”, rather, it is costing the State money at every stage, with no ‘win’ for anybody. This is particularly so given the statistics of children who later ‘graduate’ into the adult system.
Under current legislation, when a child is 9, they can walk along a street and see a bike. They can ride off on that bike. The police may see them, tell them they cannot take the bike and take them home. When a child is 10, a child can walk along a street and see a bike. They can ride off on that bike. The police may see them, speak to them (likely tackle them to the ground), place them in handcuffs, take them to the closest police station and arrest them for unlawful possession of a bicycle. The police will likely interview them and the child may say “I didn’t know that I wasn’t allowed to take that bike.” Despite that, police may refuse bail and that child may be taken to Kurlana Tapa Youth Justice Centre until the Court can hear an application for bail. In almost all cases, that young person will have the charges against them withdrawn.
Aboriginal young people between 10 and 14 are grossly overrepresented whether it be on bail or in detention. This is a result of the existing disadvantages that these young people face, and continue to face throughout their life. The criminal justice system sweeps them up indiscriminately.
As a nation, we have a responsibility to look after our First Nations children. They are the future. We have the opportunity to change the current direction of their life. Raising the age of criminal responsibility will not only ensure that young children are not spending time away from their families and communities unnecessarily, but it will help to secure a more positive future for them, and for our society.
The South Australian Government needs to follow the lead of NSW and the ACT and take action to commence legislation that will ultimately see the age of criminal responsibility being raised from 10 to at least 14. It is acknowledged that we do not have all the answers at this stage. We don't necessarily know what we should do to assist those young people who would usually be brought before the Court. That however, is not a reason to resist raising the age. Raising the age will release additional funds whereby the Government can examine alternatives to help keep these disadvantaged children on the right track. It is called justice reinvestment.
The questions should not be “Why are these children out on the streets?” or “Where are their parents?” The question should be “How can we help these children, our children and valued members of our society?” B
Endnotes 1 Section 5. 2 RP v The Queen [2016] HCA 53 at [4]. 3 R v Johnson [2015] SASCFC 170; R v Gorrie (1918) 83 JP 136; JM (A Minor) v Runeckles (1984) 79 Cr
App R 255. 4 NT, Royal Commission into the Protection and
Detention of Children in the Northern Territory,
Final Report (2017) vol 2B, 420 (Recommendation 27.1). 5 Law Council of Australia Media Release: Law
Council and NT Law Society support reduction of NT age of criminal responsibility, 31 January 2019. 6 This has been supported by the Australian
Medical Association in their submission to the
Council of Attorneys-General – Age of Criminal
Responsibility Working Group Review – 2
February 2020. 7 As quoted in Parliament of New South Wales
Legislative Review Committee, Legislation
Review Digest, NO. 37/57 – 16 November 2021,
P44. 8 Ibid.
