Position paper: Raising the age of criminal responsibility to 14

Children ten years old are still sleeping with their favourite toys, riding their bikes, and still
losing baby teeth, yet in Australia, children between the ages of ten and thirteen are held in
prison because of the minimum age of criminal responsibility legislation. The minimum age
of criminal responsibility recognises that there is an age below which children cannot be
held accountable for undertaking criminal behaviour, this being ten in Australia. This means
that children over ten years old can not only be incarcerated in youth facilities but also can
be arrested, charged, and prosecuted in children’s court for crimes committed. Among child
advocacy groups, policymakers, legal professionals, and the greater community there have
been concerns about the negative impacts of exposure to the criminal justice system on
young people and whether this age should be increased to fourteen. This position paper will
argue that raising the age of criminal responsibility to fourteen is necessary for ensuring that
children are treated fairly and justly in the criminal justice system. The rise in the age of
criminal responsibility will highlight the importance of breaking barriers between minority
groups. The paper will also suggest that new rehabilitative and therapeutic models should
be introduced to further support children within and outside the criminal justice system.

Setting the scene:

In recent years, there has been growing debate for raising the age of criminal responsibility
in Australia. Across the world, the minimum age of criminal responsibility varies
significantly. Australia is known to be considerably lower than the median this being
fourteen years of age worldwide (Trevitt, Browne 2022). In 2019, a national inquiry was
launched into the age of criminal responsibility in Australia. This process involved
consultations with legal experts, child protection agencies and community organisations.
From this It was discovered that there was large support for for raising the minimum age of
criminal responsibility in Australia, with many arguing that the current age is inconsistent
with international human rights standards. By raising the age of criminal responsibility,
Australia would be in line with international standards and best practices. The United
Nations Committee on the Rights of the Child has recommended that the age of criminal
responsibility be set at fourteen years old (United Nations, 2019). By doing so Australia
would be demonstrating its commitment to protecting the rights of children and ensuring
that they are treated fairly and justly in the criminal justice system. Haysom (2022)
emphasised the ‘positive knock-on effect’ in which there has been a reduction in offending
rates of older youths within the countries where the age of criminal responsibility is above
the average being at fifteen and sixteen.

There are growing calls from experts and nongovernment organisations who work with
children and families to raise the minimum age of criminal responsibility (Obrien, Fitz-
Gibbon 2017). International child and adolescent health specialist, Dr Mick Creati claimed
that there is evidence to suggest children's brains aren't fully developed when it comes to
decision-making (Morgan 2017). The neurological evidence suggests that 14 years is the
minimum appropriate age of criminal responsibility because brain development in children
under this age means they are generally unable to form criminal intent. Psychologist Piaget
highlights the various developmental stages in which children process and conceptualise
morality (Mcleod 2023). The study identified that a younger child would be motivated to
follow a rule by fear of being dependent on the outcome rather than the intention. In
contrast, an older child of sixteen would be able to consider rules based on intention and
outcomes may be modified. These stages of development draw conclusions on the idea that
although children may appear to identify right and wrong behaviour, they in fact lack an
appreciation for why such rules exist and the Implications of such rules within society
(Arthur 2012). Therefore, it is critical that younger children are protected from the law.
Further research has shown that children are not fully developed emotionally or cognitively.
Studies show that the prefrontal cortex, which is responsible for decision-making and
impulse control is not developed fully until the mid-teens (Jha 2011). Additionally, Alla
(2021) suggest that harsh punishment can have a negative impact on adolescent brain
development. Young children who are subjected to the criminal justice system may be at
risk of experiencing trauma and stress which have long-term effects on their cognitive and
emotional development. This implies that young individuals who are subjected to such
harsh punishments may be at risk of experiencing further disadvantages and may struggle to
integrate into society later in life.

Currently, there are six hundred children aged between ten and thirteen held in prison in
Australia and sixty per cent of these children are indigenous Australians (Kolovos, Bucci
2023). Raising the Age of criminal responsibility can help promote social justice among
teenagers by reducing the disproportionate impact of the criminal justice system on
marginalized and disadvantaged youth. The current legislations allow for children as young
as ten to be charged regardless of any circumstance or background. This has a particularly
harsh impact on marginalized and disadvantaged youths, who may face systemic barriers to
education, employment, and health care. Additionally, it is these youths who may be more
likely to be subjected to police profiling and discrimination, which can lead to
disproportionate contact with the criminal justice system (Haysom 2022). Furthermore,
raising the age of criminal responsibility can help to address the issue of racial and ethnic
disparities in the criminal justice system. As currently indigenous Australians only make up
less than 3% of the population, they do account for over half of all children in juvenile
detention (Morgan 2017). This is due in part to the systemic discrimination and
disadvantage faced by Indigenous communities, which can increase their risk of engagement
in criminal behaviour. Raising the age of criminal responsibility can help to address these
disparities by reducing the impact of systemic barriers and discrimination on Indigenous
youth.

Not only does raising the age of criminal responsibilities help social justice it does in fact
help reduce reoffending rates. Singh (2023) outlines studies that display that children who
get in contact with the justice system from a young age are less likely to have a successful
life path, less likely to complete education and less likely to find employment. Haysom
(2022) emphasises the fact that early contact is one of the strongest independent risk
factors for re-offending and recontacting with courts. In this case, these individuals are more
likely to experience mental health problems, substance abuse and a range of social and
economic disadvantages later in life Alla (2021). Raising the age of criminal responsibility
can reduce the impact of these systemic barriers by allowing young people to receive
support and interventions before they become involved in the criminal justice system. By
diverting young people away from the criminal system and towards support services, we can
address the root causes of their behaviour and prevent them from becoming caught in a
cycle of crime and punishment. Singh's (2023) research analysis of recidivism rates draws
attention to the claim that children arrested before the age of fourteen are three more
times likely to re-offend when their adults compared to those children arrested after the age
of fourteen. There was also staggering evidence which found that ninety-four per cent of
children imprisoned between the age of ten and twelve received another prison sentence
before they even reached adulthood and seventy per cent of these detained youths were
found to be rearrested within two years (Singh 2023). This highlights the importance of
raising the age of criminal responsibility to reduce recidivism rates and support children in
successful life paths.

There have been claims that raising the age of criminal responsibility it will increase the
number of crimes committed by young children because some people say that individuals
will be getting away with crimes committed, however, the evidence suggests otherwise.
According to research, raising the minimum age of criminal responsibility does not
necessarily result in an increase in juvenile crime. In fact, countries, where there has been
raised the minimum age of criminal responsibility, have seen a decline in youth crime rates.
For instance, Germany has a minimum age of criminal responsibility of fourteen years, and
in Germany, the youth crime rate is lower than that of countries like the United States,
which they have a lower age of criminal responsibility (Haysom, 2022). Therefore, the
purpose of raising the age of criminal responsibility is not to excuse young individuals from
their actions but to rather acknowledge the specific circumstances which need to be
considered when dealing with the criminal justice system.

It is crucial that legislation is passed in increasing the age of criminal responsibility In

Australia to fourteen. By raising the age of criminal responsibility better alignments can be
made between the criminal justice system and with the needs of youths. Not only does the
raise in the minimum age a child can be held accountable for consider the adolescent brain
development needs it also helps protect social justice by reducing the disproportionate
impact the system has on marginalized and disadvantaged minorities. Additionally, it is
important that focus is drawn on providing appropriate support and interventions that
address the underlying causes of certain behaviours. With the increase in the age of criminal
responsibility, new rehabilitative and therapeutic models should be created as well to
approach youths within and outside the criminal justice system (Goldsworthy 2022). This
will not only help reduce rates of re-offending but also encourage and support children in
life paths for example getting an education, creating supportive networks, and getting a job.
It is estimated that it cost almost half a million dollars to detain one child in New South
Wales for one year (Haysom 2022). Therefore, when fewer individuals are incarcerated each
year the cost of keeping them in prison can be used elsewhere for example rehabilitative
programs to create better criminal justice programs.

Reference list :

Alla K (2021) What does the evidence tell us about physical punishment of children?,
doi:https://aifs.gov.au/resources/short-articles/what-does-evidence-tell-us-about-physical-
punishment-children#:~:text=Other%20studies%20and%20reviews%20have

Arthur R (2015) Rethinking the Criminal Responsibility of Young People in England,

papers.ssrn.com, Rochester, NY- 13-29

Collins, Ellen V (2015) ‘Guilty until Proven Guilty?: An Examination of the Anti-Piracy
Response at the Interactional Level.’ International Journal of Law, Crime and Justice, 43(1):
88–108, doi:https://doi.org/10.1016/j.ijlcj.2014.07.004.

Goldsworthy T (2022) ‘Why We Should Not Rush to Raise the Age of Criminal Responsibility
in Australia.’ The Conversation, theconversation.com/why-we-should-not-rush-to-raise-the-
age-of-criminal-responsibility-in-australia-189463.

Haysom L (2022) ‘Raising the Minimum Age of Criminal Responsibility to 14 Years’ Journal of
Paediatrics and Child Health, 58(9), doi:https://doi.org/10.1111/jpc.16059.
‌

Jha A (2011) ‘Age of Criminal Responsibility Is Too low, Say Brain Scientists’, The Guardian,
doi:https://www.theguardian.com/science/2011/dec/13/age-criminal-responsibility-brain-
scientists
Kolovos B, Bucci N (2023) ‘Daniel Andrews Threatens to Go It Alone to Raise the Age of
Criminal Responsibility in Victoria’ The Guardian,
www.theguardian.com/australia-news/2023/feb/16/daniel-Andrews-threatens-to-go-it-
alone-to-raise-the-age-of-criminal-responsibility-in-victoria.

McLeod S (2015) Piaget’s Theory of Moral Development | Simply Psychology,

doi:Simplypsychology.org.

Morgan R (2017) “How Young Is Too Young? The Age of Criminal Responsibility around the
World.” SBS News, www.sbs.com.au/news/article/how-young-is-too-young-the-age-of-
criminal-responsibility-around-the-world/zi4sfe0ka

Moritz D, Tuomi M (2022) ‘Four Thresholds of Doli Incapax in Australia: Inconsistency or

Uniformity for Children’s Criminal Responsibility?’ Alternative Law Journal, 48(1),
doi:https://doi.org/10.1177/1037969x221138603.

O’Brien W, Fitz-Gibbon K (2017) ‘The Minimum Age of Criminal Responsibility in Victoria

(Australia): Examining Stakeholders’ Views and the Need for Principled Reform’, Youth
Justice 17(2):134–52, doi:https://doi.org/10.1177/1473225417700325

Richards S (2021).SA risks ‘failing’ children if it lifts criminal age from 10.
https://indaily.com.au/news/2021/07/13/sa-risks-failing-children-if-it-lifts-criminal-age-
from-10/.

Singh Y (2023) ‘Old Enough to Offend but Not to Buy a Hamster: The Argument for Raising
the Minimum Age of Criminal Responsibility’ Psychiatry, Psychology and Law, 30(1):51–67,
doi:https://doi.org/10.1080/13218719.2022.2134229

‌Trevitt S, Browne B (2020). Raising the age of criminal responsibility.

https://australiainstitute.org.au/wp-content/uploads/2020/12/P952-Raising-the-age-of-
criminal-responsibility-Web.pdf.
Weijers I, Grisso T (2009) ‘Criminal Responsibility of Adolescents: Youth as Junior
Citizenship’ Reforming Juvenile Justice, 45–67, doi:https://doi.org/10.1007/978-0-387-
89295-5_4