Words by Alison Zhu
Editor’s Note: The views expressed in this article are not necessarily the views of Lot’s Wife
In 2019, the United Nations recommended increasing our minimum age of criminal responsibility to 14 years of age. However, at the time of writing, the federal age of criminal responsibility is still ten and in Tasmania and the ACT, seven and eight respectively. The debate surrounding age of criminal responsibility is tied up in murky questions concerning how much autonomy is required to hold a child responsible for their crimes, the problems with the doli incapax (“incapable of evil”) presumption, and the discrepancies between how children are viewed in a criminal versus medical law context. Nevertheless, one thing is clear: every Australian jurisdiction must raise the minimum age of criminal responsibility.
Autonomy can be broadly understood as the capacity to self-govern, and the liberty to act independently. Conferring criminal responsibility on a ten-year-old child is to make the erroneous assumption that a ten-year-old is an autonomous individual capable of being held criminally responsible for their actions. In the case of adults without disabilities, the presumption that they have the capacity to express full autonomy is well-founded, and they should be held accountable for activities that harm the values and interests fundamental to proper social functioning. A ten-year-old who commits a crime, however, is at best an individual with diminished autonomy, incapable of meeting the threshold required for criminal responsibility. The same child has no right to drive, smoke or purchase alcohol because they are unlikely to evince the capacity to understand the law and consequences of their decisions. This reflects the long tradition in most Western countries that the country must act as a “parent of the nation”, a legal protector of the young to ensure they do not make mistakes or bad judgments due to their immaturity. Accordingly, if nations recognise this need to legally protect ten-year-olds from making certain decisions, why do we presume they have the autonomy to be held criminally responsible for their actions? The influence of parents, the environment, and social pressures such as peer pressure are disproportionately magnified in the decisions a ten-year-old child makes, regardless of the outcome. This has significant implications on why we shouldn’t consider a ten-year-old capable of exercising any meaningful powers of autonomy when they commit a crime. In fact, the parent-child relationship is one of the few relationships where a presumption of undue influence can be raised in court due to the recognition of the dependence and trust children put in their parents’ teachings.
In theory, the doli incapax doctrine protects children aged ten to fourteen who commit a criminal act from criminal responsibility. The presumption of doli incapax recognises that where a child is unable to comprehend the distinction between wrong behaviour and criminal acts, they should not be held criminally responsible. However, the doctrine is not without flaws and is not an answer to raising the age of criminal responsibility. The Royal Australian College of Physicians has noted the doctrine oversimplifies the issue of children’s cognitive capacity and supports raising the age of criminality to 14 in light of this problem. Specifically, they note the presumption fails to recognise that a child’s ability to discriminate between right and wrong does not necessarily equate with a capacity to take personal responsibility for their actions. The doctrine has also been scarcely applied in Australia despite it being the only mechanism to protect vulnerable children from formally entering our criminal justice system. For example, from 2016 to 2018, doli incapax was applied in only 48 cases in NSW. Over the same period, 736 children aged ten to thirteen were found guilty of an offence in NSW courts.
There are several reasons for its lack of use. Most legal aid lawyers commonly profess an inadequate understanding of the doctrine, and running a doli incapax hearing imposes a significant burden on already over-stretched courts and legal aid services. Additionally, even when it is applied, it can only be relied upon after the child has already been arrested, interrogated, and held in custody waiting for their charges to be withdrawn.
The presumption does little to protect children from the harmful effects of early contact with the criminal justice system, including recidivism and reduced employment prospects. The Australian Institute of Health and Welfare showed that in 2018-19, more than 570 children aged ten to fourteen were incarcerated in juvenile detention. Approximately 65% of these children were Aboriginal and Torres Strait Islander children. This period in the system prevents these children from receiving help to address their behavioural issues, as they are normally unable to receive full counselling services in case it jeopardises criminal proceedings.
The discrepancy in how the courts treat children charged with a criminal offence, and children wishing to exercise the right to make medical decisions for themselves, reveals another reason to increase the age of criminality in Australia. In Re E, a 15-year-old was held ultimately incapable of making serious healthcare decisions as she did not pass the Gillick competency test, which is a test used to determine if a minor under 16 is of sufficient intellectual decision-making capacity to make decisions concerning their own healthcare. It is confusing how a ten-year-old can be criminally responsible on one hand, and yet incapable of making serious medical decisions for themselves. This would suggest an average ten-year-old has sufficient capacity to understand how their criminal behaviour causes harm to others, but years later may be held to lack capacity to understand how medical treatment decisions can create a risk of harm to themselves. This dichotomy has not been debated nearly as much as the doli incapax doctrine, but it should be subjected to more analysis to assess the jurisprudential basis of the differential treatment of children by the legal system.
The issue can perhaps be best summarised as this: ‘what is so special about criminal responsibility that it allows children to be suddenly treated as an adult?’ On your 3,650th day of existence, the law arbitrarily decides to allocate full autonomy and decision-making power on you, commensurate with the competencies recognised in adults. It is a burden that imposes problematic responsibilities upon children, against all social and medical advice. If criminal responsibility is about ensuring young children take responsibility for their antisocial actions, then what is lost if this responsibility is taught through mental health counselling and schools rather than the criminal justice system? The flaws we have seen in the application of the doli incapax doctrine and the discrepancies between how children are treated in a medical and criminal law context provides more than enough reason to increase the minimum age of criminal responsibility.
Note from the Author – If you agree that the age should increase, please sign this petition: https://www.raisetheage.org.au/home#petition