Age of criminal responsibility raised to 12 by end of next year

Children aged 10 and 11 will not be held criminally responsible for their actions in Victoria by the end of next year.

But the Andrews government will wait until 2027 to raise the age of responsibility to 14 – as demanded by Indigenous, legal and medical groups. The second stage of reforms will include exclusions for children accused of more serious crimes, yet to be determined.

Attorney-General Jaclyn Symes said on Wednesday the government had decided against raising the age of criminal responsibility to 14 immediately to design and implement a safety net for at-risk 12 and 13-year-olds.

“I am very concerned that if you raise it too quickly, you’re going to have unintended consequences,” she said. “You’re going to have kids falling through the gap, and you’re going to have a waiting list of kids stepping into custody at 14.

“We want to make sure that no young person falls through the cracks. We want to make sure that the system, the services and the family supports are in place to coincide with raising the age to 14.”

Police Association Victoria secretary Wayne Gatt said raising the age needed to balance the interests of vulnerable young people with maintaining community safety and backed the government’s position to put in place safeguards.

Police Association Victoria secretary Wayne Gatt.Credit: Paul Rovere

He said crime data showed the age of 12 was “a critical turning point in the debate”, with the severity of criminal offending spiking between then and age 14 for high-harm offences and crimes against people.

“We believe that if the age of criminal responsibility is raised from 12 to 14 in Victoria, the most heinous of crimes including murder and terrorism offences still warrant special consideration,” he said.

“Key to our concerns is the need to ensure that adequate measures are implemented well in advance of proposed reforms to ensure that the government’s intent in driving this legislative change, is met.

“This will only be achieved through adequate funding, resourcing and the practical implementation of social and support resources to match the needs of young people caught up in criminal offending, and the police who will be called upon to respond to the incidents they are involved in.”

Symes said when the age of criminal responsibility was eventually lifted to 14, there would be exceptions for children aged 12 and 13 who commit certain serious crimes. She said it was too early to determine what those offences would be, but suggested murder and terrorism.

She said the time frame to raise the age needed to be realistic.

“If we can do it earlier than [2027], that would be great. I want to be realistic about this,” she said.

“You raise the age to 12 next year, we want to make sure we’re testing the systems, we want to make sure that the safety net is there before we risk dissolving the justice system safety net.”

Legislation for the first stage of reform will be introduced in the Victorian parliament later this year. It will also overhaul and strengthen doli incapax – the legal construct that children under the age of criminal responsibility were incapable of forming criminal intent – following the work of an independent review panel.

Currently, if a child is aged over 10 years but under 14, there is a common law presumption of doli incapax. But legal experts for decades have warned it is not functioning as it should.

The Australian Law Reform Commission in 1997 conducted a comprehensive review of children’s legal rights and acknowledged doli incapax could be problematic, while the Australian Human Rights Commission three years ago said it was concerned the legal safeguard was failing to protect some of the most vulnerable children aged between 10 and 14.

Symes on Wednesday said work would be undertaken to determine how doli incapax could be strengthened. She suggested police may be required to prove a child had the mental capacity to know their behaviour was seriously wrong when charging alleged offenders.

There are no children aged between 10 and 12 in custody in Victoria. Of the eight children aged 13 or 14 who are in custody, all of them are on remand. One of them is Indigenous.

Nerita Waight, chief executive of the Victorian Aboriginal Legal Service, said Aboriginal communities had been fighting for the age of criminal responsibility to be raised to 14 for years and there was no need to delay any longer.

“There is no reason that the government cannot fully implement this reform before the next election. The government has been working on this reform for almost a decade through the federal process, and many inquiries and reports have provided a clear plan for implementation,” Waight said.

Federation for Community Legal Centres chief executive Louisa Gibbs said while she was pleased to see Victoria moving towards a “more humane” justice system, the government’s announcement fell short of expert advice.

“Research tells us that children below the age of 14 have not yet reached the stage of brain development where they can be held criminally responsible,” Gibbs said.

“What’s more, engagement with the criminal legal system, including incarceration at a young age, has a damaging impact on children’s wellbeing and growth, with long-term implications, such as potential disability, suicide risk and increased risk of longer-term imprisonment as an adult.”

Symes made the announcement on Wednesday, ahead of a meeting of the country’s attorneys-general on Friday.

Shadow attorney-general Michael O’Brien said the opposition was not against criminal justice reform but that there had to be some form of accountability for children, particularly in circumstances where the child did have the capacity to form criminal intent.

“Where is the accountability? If a child who knowingly commits a crime isn’t going to be legally accountable, how are they going to be held accountable? How are they going to be set on the right path? The government hasn’t answered those questions,” O’Brien said. “Or does the government believe there shouldn’t be any accountability under any circumstances for any crime committed. To us, that’s not a sensible approach.”

Greens MP Tim Read said the government’s announcement on Wednesday was inadequate and the age of criminal responsibility should have been raised to 14 sooner.

“We can do better than this,” Read said. “They don’t need four years to do this. Kicking it into the next term of government is unnecessary.”

The Standing Council of Attorneys-General started reviewing the imprisonment of children in late 2018 in response to concerns Australia was not in line with the rest of the world, where the most common age of criminal responsibility is 14.

The Northern Territory passed legislation last year to lift the minimum age to 12, while the ACT is preparing to introduce laws into parliament to raise the age to 12, and then to 14 in two years.

Symes said Victoria’s preference was for national consistency, but acknowledged all states would be on different timelines.

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