ACT government raises minimum age of criminal responsibility to 12, 14 by 2025

The nation’s capital has become one of Australia’s first jurisdictions to raise the minimum age of criminal responsibility to 12 and eventually to 14, in daring opposition to states grappling with youth crime.

The ACT has become to first jurisdiction in Australia to raise the minimum age of criminal responsibility from 10 to 12, and to 14 by 2025.

Concerns have been raised in the ACT after legislation was passed raising the minimum age of criminal responsibility to 14 from mid-2025.

In a landmark call, the ACT Legislative Assembly passed laws raising the criminal age of responsibility from 10 to 12 on November 1, being a historic reform in the territory’s history.

The age bracket will then jump to 14 from July 2025, in what the Labor Greens ACT Government says will divert children away from the criminal justice system and be provided with “therapeutic supports”.

“Children in our community, especially those engaging in harmful behaviour, need our care and attention, not to be locked away in prison,” Attorney-General Shane Rattenbury said in a statement.

“Raising the age to 12 then 14 will bring the ACT into line with international standards, uphold our human rights obligations, and support positive and just outcomes for both vulnerable young people and the wider ACT community.”

Attorney-General of the Australian Capital Territory Shane Rattenbury outside the ACT Legislative Assembly in Canberra. Picture: NCA NewsWire / Martin Ollman

Youth Coalition of the ACT chief executive Justin Barker said these early supports for children, young people and families would be critical.

“The staged approach to implementation provides the ACT with an opportunity to develop and test the necessary therapeutic service and system supports, to ensure we are adequately and appropriately meeting the needs of children, families and the community,” Dr Barker said.

So what will happen to children who are under 12 and commit crime?

The Minimum Age of Criminal Responsibility or MACR refers to the age when a child can be remanded in a youth justice centre or engage in the criminal justice system, such as being arrested and coming to court.

The existence of this legislation is meant to recognise there is an age where children are not able to form criminal intent in harmful behaviours, meaning the criminal justice system isn’t appropriate.

Under the reforms a Therapeutic Support Panel will be established to work with children and young people under 12 who “engage in harmful behaviours” while liaising with their families and carers to reduce the likelihood of their criminal behaviour.

This will consist of 10 to 12 members with adequate expertise and experience in their fields.

Serious crimes such as murder, manslaughter and sexual assault would be exempt from this legislation, with the accused aged 12 and 13 able to be trialled.

The minimum age of criminal responsibility will be raised to 14 by 2025 in the ACT.

Opposition thoughts

Shadow Attorney-General Peter Cain said to the ACT Legislative Assembly after the bill came into place the Liberals did not support the 12 to 14 move, and queried how a 13-year old had the mental capacity to be liable for a serious crime but not for a lesser crime.

“The logic and the legality does not stack up,” Mr Cain said.

What the Liberals push for is a review two years after the minimum criminal age of responsibility was raised to investigate whether it should be raised further.

Canberra Liberals leader Elizabeth Lee said they supported the lift to 12, which aligned with the Northern Territory, however believed there needed to be more analysis of the “full effects” of the new law.

Canberra Liberals Shadow Attorney-General Peter Cain. Picture: Facebook

Ms Lee said due to the Territory being a small jurisdiction, the amount of offences committed by youths from 10 to 12 was relatively low, but from 12 to 14 it was a “different story”.

Some of the concerns about this legislation included the complexities of extraditions between the ACT and NSW of youths and what that would mean.

“The nature of crimes of number of cohorts being arrested for criminal activity between 10 to 12 and 12 to 14, there is a very stark difference,” Ms Lee said.

“No one wants to see kids in jail … but we have to be conscious of those who find themselves in trouble with the law are getting the appropriate support programs available to them and they do not exist at the moment.

“It’s a concern for us and it the kind of issue you need to take slowly.”

How does the ACT compare nationally?

The current age of criminal responsibility in NSW, Qld, Victoria, Western Australia, Tasmania and South Australia is 10.

The Northern Territory has introduced legislation to raise it to 12, while Victoria intends to raise the minimum age to 12 initially, and to 14 by 2027. Tasmania also intends to raise the minimum age to 14 by 2029.

NSW parliament says while children from 10 and up can be arrested, remanded in custody or convicted by the courts, the main aim of their youth justice system was divert them from the criminal justice system.

Queensland operates under the presumption a child between 10 and 14 does not possess the necessary mental element for an offence, with the prosecution having to prove if the child had the capacity to know not to commit the offence as opposed to being mischievous. A similar concept occurs in Tasmania. This is not enshrined in NSW legislation.

Recent figures pinpointed the worst hot spots in NSW for serious youth crime with the Sydney’s CBD, Mt Druitt and the outback town of Bourke topping the list.

This data comes amid increased focus on youth crime and violence – largely driven by ‘postcode wars’ that have seen rising numbers of young people turn to violence in parts of Sydney.

While in Queensland, data in January 2023 revealed the state’s cohort of hardcore youth offenders was larger than ever despite the government’s continuing push to target the worst of the worst.

The Productivity Commission data showed 56.8 per cent of Queensland juveniles aged 10-17 who were sentenced either to detention, probation, bail or parole were back before a courtroom within a year, as of 2019-20.

ACT Policing data revealed in July there were 3550 offences committed by youth offenders in the ACT in the last three years.

The top five offences from the highest were common assault, followed by minor theft, riding/driving a motor vehicle without consent, damaging property and assault occasioning bodily harm.

Police perspective

ACT Policing's Commander Operations Rich Breiner. Picture: ACT Policing

ACT Policing Commander Operations Rich Breiner said they would always support the idea of people not coming into the criminal justice system, strongly preferring a diversion or alternative to a judicial punishment or incarceration.

Commander Breiner said in his patch officers only came across a “very small percentage” of youth offenders between 10 to 12, but 12 to 14 was different.

“We do get young offenders [in those age groups] committing serious offences such as stealing cars and driving dangerously,” he said.

The senior cop hoped Child and Youth Protection Services and community groups would help with the “heavy lifting” to keep children out of detention and away from criminal offending.

This publication put to Mr Rattenbury and Youth Justice Minister Emma Davidson what would happen to recidivist offenders under 14 who continually encounter the therapeutic panel, but they did not respond in time of publishing.