A 10-year-old can’t make adult decisions, so why do we hold them criminally responsible?

Parliaments across Australia are presently grappling with the question of whether to lift the minimum age of criminal responsibility – from the current age of 10 to 14 years, as the consensus of professional opinion seems to be.

Debate in Victoria has most recently led to discussion around if there should be a uniform position across the commonwealth, states and territories. This leads to the conclusion that the proper course is for all parliaments – commonwealth, state and territory – to lift the minimum age to 14 years, ideally in harmony with each other but, if necessary, on an individual parliament basis.

The proper course for all parliaments is to lift the age of criminal responsibility from 10 to 14.Credit:iStock

Firstly, along with the power of any parliament to make a criminal law, sits the responsibility to ensure that such law can only criminalise the activity of somebody with the relevant capacity to know right from wrong, and sufficient insight to know they have acted criminally. Criminalising unlawful behaviour is one of the fundamental characteristics of a civil society, but only for those who are capable of knowing better. Such societies deal, albeit separately, with those incapable of appreciating the criminality involved in their unlawful activity.

Australia would be a different (and lesser) place if we generally criminalised the activities of those incapable of such understanding. There seems no sensible basis to do that for children between 10 and 13 years of age, when the professional learning is that they are incapable of sufficient understanding at that age.

Secondly, while it is the responsibility of individual legislatures – each bound to carefully weigh considerations relevant to their constituents – there is a universal and clear position on issues of this nature. In those circumstances, it behoves those legislatures to act in harmony.

Thirdly, many of us have, or have friends and relatives with, children aged between 10 and 13. None of us would rationally entrust them with adult, or even young adult responsibility. There is similarly no rational reason why the criminal law should do so. It is no surprise that the research is all one way in terms of demonstrating that children aged between 10 and 13 do not have the requisite capacity to sufficiently understand right from wrong in the sense necessary to criminalise their behaviour. In other respects, we do not support laws that do not reflect our everyday ideals and behaviours, or which we consider irrational. This is no different.

Fourthly, this is simply neither a law and order, nor a public safety issue. Society has long dealt with unlawful activity of persons who lack the capacity to be dealt with under criminal law. Sometimes that is the product of youth, as it is undoubtedly for persons presently under 10 years old in Australia, and also because of other afflictions of mind that render a person incapable of understanding their actions to the point of their not being criminally responsible for them.

However, removing criminal responsibility does not equate to freedom from consequence. Somebody being held criminally responsible for their unlawful behaviour has nothing to do with what is the appropriate response to that unlawful activity.

Criminalising unlawful behaviour is one of the fundamental characteristics of a civil society, but only for those who are capable of knowing better.

A person who engages in behaviour which is a danger to themselves or the community can – and should – have their liberty curtailed, in a way that is relevant and appropriate in response to the action, whether it is ultimately treated as criminal or not.

The safety of the community and the maintenance of law and order is ensured by appropriate responses to curtail and discourage the activity, not if the law does or does not characterise it as criminal. Children in this cohort almost never receive custodial sentences, yet a significant number are remanded in custody only to receive non-custodial sentences; a practical illustration of the need for legislative change.

Finally, among children who have engaged in unlawful activity having receiving the societal response, it is in our collective interest to reset that child towards living peacefully and lawfully, and contributing to society. That will only realistically happen if children between 10 and 13 remain where they belong: in school, with the necessary support, encouragement, restrictions and constraints in place as realistic ways of achieving that.

Peter Dunning KC is president of the Australian Bar Association.

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