In all Australian jurisdictions, no child under the age of 10 can be found guilty of an offence. This age is referred to as the age of criminal responsibility. In NSW, this rule is found under Section 5 of the Children (Criminal Proceedings) Act 1987 (NSW). If a child is aged between 10 and 14-years-old, there is also a rebuttable presumption that the child does not have the capacity to be held criminally responsible. This is known as doli incapax, meaning ‘incapable of crime’. The presumption of doli incapax must be considered in all cases that involve a defendant under the age of 14 to ensure that the child knew what he/she was doing was seriously wrong and not mere naughtiness or mischief.

Police have argued that the principle of doli incapax protects vulnerable children from being inappropriately sentenced. However, extensive research has revealed the detrimental impacts of imprisonment for children under 14-years-old, particularly in the long-term.

Do you agree that children aged 10 can be found guilty of a crime?

Or is there a need to raise the minimum age to ensure that our children are protected?


In 2019, the United Nations Committee on the Rights of the Child stated that Australia’s minimum age of criminal responsibility is too low. The committee continued to explain that a higher minimum age level, such as 14 or 16, was required to align with international standards and effectively consider emotional, mental and intellectual maturity. Whilst most European nations have a minimum age of 14 or higher, countries including the United Kingdom and Australia continue to set the age of criminal responsibility at 10-years-old. As a result, thousands of children under the age of 14 are arrested, remanded in custody, convicted for a criminal offence and imprisoned. The Australian Institute of Health and Welfare has revealed that in 2018-19, more than 570 children under the age of 14 were sentenced to juvenile detention and 773 children were placed on community-based orders.


Child Development

Studies have revealed alarming consequences of imprisoning children under the age of 14, specifically in relation to their mental/cognitive capacity. Professor Chris Cunneen from the University of New South Wales has revealed in his report that 9 out of 10 children in youth detention in Western Australia were severely impaired in at least one aspect of brain function. This means that majority of incarcerated children struggle to understand the instructions they are required to comply with. Ultimately, this supports the finding that children who enter the justice system at a younger age are more likely to engage with the criminal justice system later in their life. The Royal Australasian College of Physicians (RACP) have also recognized the negative impact of imprisonment on child development. The RACP emphasizes that children who are physically and neuro-developmentally vulnerable must be treated with effective protection and healthcare which cannot be ensured in juvenile detention.


Vulnerable Groups

Studies have revealed that most children under 14 years of age in the criminal justice system come from financially disadvantaged families and suffer from underlying trauma. Further, almost 70% of children aged 10-14 in detention are from Aboriginal and Torres Strait Islander (ATSI) backgrounds. This signifies an alarming over-representation of vulnerable groups within the justice system, specifically ATSI people. Cheryl Axleby, the co-chair of Change the Record, has expressed her concern that the legal system is quicksand that traps these kids and their families for the rest of their lives. One of the many reasons for this repeated cycle is the absence of adequate resources and mental health treatment for young generations who require support.


Convincing Alternatives

“Kids can’t sign up to Facebook officially until they’re 13, because they’re vulnerable, but we can lock them up in a prison and have them strip-searched at the age of 10”.

This statement by Dr Mick Creati, a paediatrician for the RACP, enforces the need to seek alternatives when dealing with children aged between 10 and 14-years-old. Recommendations include early intervention, justice reinvestment initiatives and community-led diversion programs that focus on the safe development of children rather than turning to police and facing court sentences.


The Australian Capital Territory (ACT) has become the first Australian jurisdiction to agree to raising the minimum age of criminal responsibility to 14-years-old. Whilst this is a step closer to protect our children, the responsibility to enforce legislative amendments has been handed to the government party that wins the next election in October. The ACT’s decision to vote for reform before the Legislative Assembly has received a positive and hopeful response. The ACT Law Society has welcomed the vote as anecessary change to treat children like children, not like criminals.


Until any legislative reform takes effect, children aged between 10 and 14-years-old can still be arrested, charged and convicted of a criminal offence. The outcome of these matters can potentially impact a child’s future. If you are the parent of a child facing criminal charges, speak with our experienced team at National Criminal Lawyers®. We understand that this is an especially difficult time and our office will guide you through the legal process.

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