Every country, including Australia, has a minimum age of criminal responsibility. What this means is that any child older than that minimum age can be arrested, charged and found guilty of a criminal offence. In Australia, the age of criminal responsibility is considerably lower than the international average, and there has been an ongoing debate as to whether or not Australia should raise this minimum age to match other countries. So, at what age can a child be arrested in Australia, and are there any plans to increase this age in the near future?

The Current Minimum Age of Criminal Responsibility

Under section 29 of the Criminal Code Act 1899, the current minimum age of criminal responsibility is 10. This minimum age applies to all Australian states and territories. What this age limit means is that children under the age of 10 cannot be held criminally responsible, nor can they be charged with a criminal offence. If a child above the age of 10 does commit an offence, they can be charged and, depending on the crime, can be sentenced with youth detention.

This section of the Act also states that children between the ages of 10 and 14 are not criminally responsible if it is proven, beyond reasonable doubt, that at the time of the criminal act or making the omission, they lacked the capacity to know they should not do the act. Australian law refers to this as ‘doli incapax’.

However, if a child is found to have had the capacity to know that they should not have done the criminal act, they will be found guilty by the Australian courts and sentenced to prison as a juvenile.

How is a Child Over 10 Dealt With in the Court?

Children over the minimum age of criminal responsibility and under the age of 18 will be dealt with by either the Children’s Court of Queensland or the Children’s Court (Magistrates Court jurisdiction). Depending on the crime committed, these courts have the power to impose a range of sentences.

Section 172 of the Youth Justice Act 1992 states that if a juvenile offender is found guilty of an eligible drug offence, the Court can refer the child to a drug assessment and education session. The child must first consent to attend the session.

Section 175 of the Youth Justice Act 1992 outlines several penalty options for a juvenile offender. If a child is found guilty of an offence that, if committed by an adult, would make the adult liable to imprisonment, the child could be sentenced to a community service order, probation order, or an intensive supervision order. This section also states that a juvenile offender can be placed on a probation order under the supervision of Youth Justice Officers for up to 2 years. Under Part 3 of section 175, a juvenile offender may be sentenced to a period of detention where they must spend a set amount of time in a youth detention centre. A child may also be ordered to pay a fine (if they can afford it) within a set period of time if found guilty of a crime.

All sentencing order options for those above the minimum age of criminal responsibility can be found here.

At What Age Will a Child Be Dealt With By the Justice System?

From February 2018, amendments to the Youth Justice Act 1992 saw offenders aged 17 dealt with in the youth justice system. Previously, children aged 17 were considered adult offenders. This amendment allows 17-year old children who have been considered adult offenders and placed in adult prisons or on adult community-based orders to be transferred to the youth justice system until they are 18. The Queensland Courts state that if an 18-year-old offender committed a crime before turning 18, they are still dealt with as a child.

A New Push to Raise Minimum Age of Criminal Responsibility

While the minimum age of criminal responsibility varies across the world, there are arguments that Australia’s age is extremely low compared to most European and Asian countries. In early 2021 at the UN’s Universal Periodic Review, thirty-one countries urged Australia to raise the minimum age of criminal responsibility to 14 years. Many countries and even local organisations in Australia, such as Raise the Age, believe that the current laws violate children’s rights under the Convention of the Rights of the Child. Roughly 600 children aged 10 to 13 years were locked away in prisons in just one year. Aboriginal and Torres Strait Islander children are disproportionately impacted by this law, accounting for 65% of this yearly number.

The minimum age of criminal responsibility in Australia remains at the age of 10, however, Western Australia’s Labor party recently passed a motion to raise the age of criminal responsibility to 14.

Has Your Child Been Accused of Committing a Crime?

While this minimum age of criminal responsibility has the potential to cause lasting emotional and psychological harm to a child, the law remains. If your child has been accused of breaking the law and is required to attend court, we highly recommend seeking legal representation from experienced criminal lawyers like Guest Lawyers. We understand that facing a criminal charge can be a stressful situation, especially for young people. Our team will work with the child, the child’s family and the Courts to reduce the severity of the penalty if the child is found guilty of a crime. Please get in touch with our criminal lawyers to discuss legal representation via email or phone.