Age thresholds in criminal justice processes

Age of criminal responsibility

18.12 Children are not held criminally responsible for their actions until they have reached a certain age.[29] The age of criminal responsibility is 10 under federal law[30] and in all jurisdictions except Tasmania and the ACT where the threshold is seven and eight respectively.[31]

18.13 The age of criminal responsibility under the Crimes Act is generally consistent with standards in common law countries. In England, for example, there is a conclusive presumption that a child under 10 years of age cannot be guilty of a criminal offence.[32] In Scotland the age of criminal responsibility is eight and in Ireland it is seven.[33] In Canada, the age of criminal responsibility is 12.[34] In New Zealand the age of criminal responsibility is 10.[35]

18.14 The age of criminal responsibility is generally higher in civil law countries.[36] For example, in France the age of criminal responsibility is 13.[37] In Norway and Denmark it is 15.[38]

18.15 The United Nations Committee on the Rights of the Child has expressed concern about the 'low age of criminal responsibility' in the UK and recommended that serious consideration be given to raising it.[39] The Committee recently asked the federal Government to prepare responses to a series of questions raised by the first report under CROC before it appears before the Committee to discuss that report. One of the questions is whether Australian jurisdictions envisage raising the age of criminal responsibility.[40]

18.16 All Australian jurisdictions should agree on and legislate a uniform age of criminal responsibility. A child should not be liable to be charged with a criminal offence in one State for an act which if committed in another would not attract liability only by reason of his or her age. The Inquiry recognises that there is an element of arbitrariness when setting age thresholds, especially given the great variations in capacity between individual children. However, setting an age provides certainty for both the law and children. As most jurisdictions, including the Commonwealth, have already decided on 10 as the age of criminal responsibility it would seem to be the most obvious choice. This conclusion is supported by a number of submissions.[41]

Recommendation 194 The minimum age of criminal responsibility in all Australian jurisdictions should be 10 years.

Implementation. The Tasmanian Government and the ACT Government should enact legislation to this effect.

Doli incapax

18.17 In addition to a statutory minimum age of criminal responsibility, there is a legal presumption concerning criminal responsibility operating in all Australian jurisdictions known as the principle of doli incapax.[42] This old common law principle presumes that a child aged under 14 does not know that his or her criminal conduct was wrong unless the contrary is proved. That is, it is a rebuttable presumption.

18.18 The principle of doli incapax has been controversial in recent years both in Australia and the United Kingdom.[43] In 1990 the committee reviewing federal criminal law recommended that the principle should be retained but that the onus for the presumption should be reversed.[44] This would mean it would be up to the accused to demonstrate that he or she did not understand that his or her criminal act was wrong.

18.19 Doli incapax can be problematic for a number of reasons. For example, it is often difficult to determine whether a child knew that the relevant act was wrong unless he or she states this during police interview or in court. Therefore, to rebut the presumption, the prosecution has sometimes been permitted to lead highly prejudicial evidence that would ordinarily be inadmissible.[45] In these circumstances, the principle may not protect children but be to their disadvantage.

18.20 The Inquiry considers the principle of doli incapax a practical way of acknowledging young people's developing capacities. It allows for a gradual transition to full criminal responsibility.

...the purpose and effect of the presumption is still to protect children between 10 and 14 from the full force of the criminal law.[46]

The doli incapax rule has the merit of making the police, prosecutors and the judiciary stop and think, however briefly in some cases, about the degree of responsibility of each individual child.[47]

The principle should be applied consistently throughout Australia and be legislatively based.[48] The legislation should require that to rebut the presumption the prosecution must prove that the child defendant knew that the criminal act for which he or she is charged was wrong at the time it was committed.

Recommendation 195 The principle of doli incapax should be established by legislation in all jurisdictions to apply to children under 14.

Implementation. All States and Territories that have not already done so should legislate to this effect.

Age of majority

18.21 In the Northern Territory, Victoria, Tasmania and Queensland, children are dealt with in the adult criminal system once they turn 17.[49] In all other States, in the ACT and under federal criminal law all children are juveniles for the purposes of the criminal law, that is until they turn 18.[50]

18.22 The Inquiry considers that there should be national consistency on when a young person is dealt with in the juvenile justice or adult criminal system. An Australian child of a particular age should not be able to be tried as a juvenile in one jurisdiction and as an adult in another. Townsville Community Legal Service gave the hypothetical example of a 17 year old who would be charged, tried and possibly detained as an adult in Coolangatta (Qld) but as a juvenile several metres away across the border in Tweed Heads (NSW).[51] Children should not be treated as adults by the criminal justice system. The age of majority for the purposes of the criminal law should be 18, the age at which a child becomes an adult under general Australian law and under CROC.

Recommendation 196 The age at which a child reaches adulthood for the purposes of the criminal law should be 18 years in all Australian jurisdictions

Implementation. All States and Territories that have not already done so should legislate to this effect.

Age of consent

18.23 The age at which a child can participate legally in sexual intercourse is determined by State and Territory legislation. Generally, the age of consent for sexual intercourse between males and females is 16 or 17.[52] The age of consent for male homosexual sex is commonly set higher than the threshold for heterosexual or lesbian sex. For example, in NSW and the Northern Territory the general age of consent is 16 and the age of consent for sex between males is 18.[53] In Queensland, there is a general prohibition on anal intercourse with people who are under 18.[54] While the general age of consent in Western Australia is 16, it is illegal for a man to have sex with another man who is under 21.[55]

18.24 The Inquiry received a number of submissions on the social, health and legal implications of a higher age of consent for male homosexual sex.

It seems anachronistic to me that the age of consent is different for males. It is a legal issue that at some stage must be tackled, if not for reasons based on logic or issues of discrimination, then for psycho-social and public health reasons.[56]

The laws across Australia are inconsistent, they are discriminatory and they are without regard to privacy. The current law...has real impact upon the day to day life of young gays and lesbians...It reduces the reporting of violence to police where the nature of that violence would identify the young person as gay and it also hinders the young person seeking assistance from many services in that they have a fear of disclosing that they are engaged in criminal activity.[57]

18.25 In 1977 the Royal Commission on Human Relationships recommended that the general age of consent should be 15.

We think this approach would be a more realistic reflection of the sexual behaviour of young people and of their ability to make personal decisions. At this age children can leave school, get jobs and start playing a responsible role in society.[58]

The Model Criminal Code Officers' Committee recently recommended that the age of consent for both females and males be set at 16 years.

The inference that might be drawn from an older age of consent for homosexual conduct is that homosexuality is an undesirable activity from which males should be both protected and deterred until adulthood. It is questionable whether this is an appropriate aim of the criminal law.[59]

18.26 In August 1997 the Wood Royal Commission recommended the removal of gender discrimination in age of consent laws.[60] The Commission based its recommendation on a number of conclusions including the following.

    • Present legislation is, on any view, discriminatory and anomalous in its application.

    • Legislative proscription of consensual conduct moves into shaky territory when it is based upon purely moral or religious grounds, particularly where they are the subject of genuinely divergent opinions.

    • Young people should not be denied advice and education on safe sex because of the illegality attaching to their conduct.

    • Making the age of consent uniform would remove an opportunity which is ripe for selective policing, extortion and corruption.

    • Irrespective of legislative provision, parents and religious bodies remain free to teach their children according to their own religious and moral values, as it does for those children to accept or reject them.[61]

18.27 The Commissions consider it inequitable and discriminatory to criminalise the sexual activity of young gay men who have reached the age when sex with a person of the opposite sex would be legal. These laws can be seen as an official sanction of the unfairly different treatment experienced by many young gay men and lesbians. All States and Territories that have not already done so should make the age of consent the same for heterosexual and homosexual sex.

Recommendation 197 The age of consent should be the same for heterosexual and homosexual sex.

Implementation. All States and Territories that have not already done so should legislate to this effect.

[29] art 40(3)(a) of CROC requires States Parties to establish a minimum age below which children shall be presumed not to have the capacity to infringe the criminal law. It does not propose a particular age for this presumption.

[30] Crimes Act s 4M. This provision was introduced by the Crimes Amendment Act 1995 (Cth) s 4 to overcome the anomaly of children being liable for prosecution for federal offences at different ages in different jurisdictions: Hansard (H of R) 1 March 1995, 1336. See also Criminal Code Act 1995 (Cth) Sch Pt 2.3, 7.1. The age of criminal responsibility recommended in the Model Criminal Code is 10: Criminal Law Officers Committee of SCAG Final Report: Chapter 2 General Principles of Criminal Responsibility AGPS 1993, 35.

[31] Criminal Code (Qld) s 29(1); Children (Criminal Proceedings) Act 1987 (NSW) s 5; Young Offenders Act 1993 (SA) s 5; Children and Young Persons Act 1989 (Vic) s 127; Criminal Code (WA) s 29; Criminal Code (NT) s 38(1); Children's Services Act 1986 (ACT) s 27(1); Criminal Code (Tas) s 18(1). The Tas Government has announced its intention to raise the age of criminal responsibility to 10 as part of the reforms in the Youth Justice Bill 1997 cl 3.

[32] Children and Young Persons Act 1933 (UK) s 50.

[33] Criminal Procedure (Scotland) Act 1975 (UK) s 170. In Ireland the age of criminal responsibility is governed by the common law: eg Goodbody v Waterford Corporation [1953] Ir Jur Rep 39; Cashman v Cork Co Council [1959] Ir Jur Rep 7; Monagle v Donegal Co Council[1961] Ir Jur Rep 47. The Children Bill 1996 which proposed raising the age of criminal responsibility in Ireland to 10 years has lapsed.

[34] Criminal Code (Can) s 13.

[35] Crimes Act 1961 (NZ) s 21.

[36] However, civil law countries do not recognise the doli incapax principle: see para 18.17.

[37] C Dadomo & S Farran The French Legal System Sweet & Maxwell London 1996, 76.

[38] General Civil Code (Norway) s 46; Criminal Code (Denmark) s 15. For a list of the ages of criminal responsibility in Council of Europe countries see P Cavadino 'Goodbye doli, must we leave you?' (1997) 9 Child and Family Law Quarterly 165, 171.

[39] UN Committee on the Rights of the Child Report of the Committee on the Rights of the Child: Sixth to Eleventh Sessions UN New York 1996, 73, 76.

[40] Letter to the Australian Government from the Committee on the Rights of the Child 10 February 1997.

[41] eg National Children's and Youth Law Centre DRP Submission 59; SA Children's Interest Bureau DRP Submission 79; NSW Youth Justice Coalition DRP Submission 91.

[42] Crimes Act s 4N; Criminal Code (Tas) s 18(2); Criminal Code (WA) s 29; Criminal Code (Qld) s 29(2); Childrens Services Act 1986 (ACT) s 27(2); Criminal Code (NT) s 38(2). In NSW, SA and Vic the presumption continues to be based on the common law: eg IPH v Chief Constable of New South Wales [1987] Crim LR 42. Doli incapax also applies in NZ: Crimes Act 1961 (NZ) s 22.

[43] A recent decision of the House of Lords restated the principle after a lower English court had determined it was obsolete: C (A Minor) v DPP [1996] AC 1. See P Blazey-Ayoub 'Doli incapax' (1996) 20 Criminal Law Journal 34. The President of the Children's Court of Qld, McGuire J, recently recommended that the principle of doli incapax be abolished in that State: Children's Court of Qld Third Annual Report 1995–96 Children's Court of Qld Brisbane 1997, 29–46.

[44] Attorney-General's Dept Review of Commonwealth Criminal Law: Interim Report — Principles of Criminal Responsibility and Other Matters AGPS Canberra 1990 rec 8.15.

[45] eg evidence of admissions to prior convictions adduced during a record of interview has been held by the SA Supreme Court to be admissible to rebut doli incapax: R v M [1977] 16 SASR 589. This is in contrast to the UK decision in C v DPP [1996] AC 1, 34 in which Lord Lowry stated that a child defendant ought not to be put in a worse position than an adult by having evidence of his or her previous convictions admitted unless they can be admitted under a generally applicable evidentiary principle, eg, if the defendant has put his or her character in issue.

[46] C v DPP [1996] AC 1, 36 per Lord Lowry.

[47] P Cavadino 'Goodbye doli, must we leave you?' (1997) 9 Child and Family Law Quarterly 165, 170.

[48] This proposal had support in submissions: eg Juvenile Justice Advisory Council of NSW DRP Submission 53; NSW Youth Justice Coalition DRP Submission 91.

[49] Juvenile Justice Act 1983 (NT) s 3; Children and Young Persons Act 1989 (Vic) s 3(1); Child Welfare Act 1960 (Tas) s 3(1); Juvenile Justice Act 1992 (Qld) s 5. The NT Government DRP Submission 71 is satisfied with the existing position. The Tas Government proposes raising the age to 18: Youth Justice Bill 1997 cl 3.

[50] This is consistent with art 1 of CROC which provides that 'child' means every person under 18 years of age.

[51] DRP Submission 46. The proposal is also supported by NSW Youth Justice Coalition DRP Submission 91.

[52] eg Criminal Code (Qld) s 215; Crimes Act 1900 (ACT) s 92E(2); Criminal Code (Tas) s 45; Criminal Law and Consolidation Act 1935 (SA) s 49; Crimes Act 1958 (Vic) s 46. In some jurisdictions there is a different age of consent where the accused has a position of authority or trust in relation to the victim. eg in SA the age of consent is 18 in cases of sexual relations between a child and a guardian, principal or teacher: s 49(5).

[53] Crimes Act 1900 (NSW) ss 66C, 78K; Criminal Code (NT) ss 128, 129.

[54] Criminal Code (Qld) s 208. The Criminal Code Act 1995 (Qld) which amended these provisions has never been proclaimed.

[55] Criminal Code (WA) ss 320, 321, 322A. It is probable that s 322A is invalid due to Human Rights (Sexual Conduct) Act 1994 (Cth) s 4 which protects persons over 18 from interference in their private sexual lives.

[56] D Leary, Come-In Youth Resource Centre Public Hearing Submission Sydney 26 April 1996.

[57] R Bennett, 20/10 Lesbian and Gay Youth Service Public Hearing Submission Sydney 26 April 1996.

[58] Final Report Vol 5 AGPS Canberra 1977, 210.

[59] Model Criminal Code Officers Committee of SCAG Discussion Paper: Chapter 5 Sexual Offences Against the Person Model Criminal Code Officers Committee of SCAG 1996, 103.

[60] 'The Commission recommends that consideration be given to the introduction of legislation under which the common age of consent is set at 16 years, subject to exceptions in relation to child prostitution and to adults standing in special relationships, in each of which cases it should be set at 18 years': Final Report Vol V: The Paedophile Inquiry NSW Government Sydney 1997 rec 81.

[61] id 1079–1080.