The Law Council of Australia is calling for all Australian jurisdictions to lift the minimum age of criminal responsibility to 14 years and remove the need for the doli incapax presumption.  

Law Council directors have unanimously resolved to change the Law Council’s policy, which previously called for the minimum age of criminal responsibility to be raised to “at least 12-years-old”.

The current minimum age of criminal responsibility in all states and territories, and under federal law, is 10 years of age, which is “far too low,” says Law Council of Australia President, Arthur Moses SC.  

“Research-based evidence on brain development supports a higher age as children are not sufficiently able to reflect before acting or comprehend the consequences of a criminal action. Children belong in their communities with their families and guardians, not in detention. Imprisonment should be a last resort when it comes to children, not a first step.  

“The incarceration of children as young as 10 is a national tragedy. There is something wrong when children can’t join Facebook until 13 but in Australia can be prosecuted for a criminal offence at 10.”

Mr Moses says the decision by Law Council Directors was timely, as the minimum age and its disproportionate impact on First Nations communities will be discussed this week at the United Nations’ Human Rights Council.  

“Raising the minimum age of criminal responsibility to 14 would also remove the need for courts to consider the confusing and complex ‘doli incapax’ presumption,” says Mr Moses.

“Doli incapax means the law presumes a child under the age of 14 does not possess the necessary knowledge required to have criminal intent. This presumption can be disproved or rebutted by leading evidence to show that a child knew his or her actions were morally wrong. In practice, doli incapax has proven to be extremely difficult to apply in court.

“Raising the minimum age of criminal responsibility to 14 years would improve justice outcomes for some of our most vulnerable children and honour Australia’s commitments under international law, including to promote the best interests of the child. This would also replace doli incapax altogether, significantly reducing complexity and confusion in our courts.

“Raising the age of minimum criminal responsibility is not being soft on crime: it means adopting a just, proportionate approach. The evidence clearly shows those detained as children are often imprisoned as adults. This is not the trajectory we want for vulnerable children or the best way to keep our communities safe. Children must be protected, not criminalised, and prison should never be a rite of passage.”

In New Zealand the age of criminal responsibility is 10, but in several countries, such as India, Nigeria and Singapore it is seven. In the United States, more than 30 states set no age for criminal responsibility.