Wendy is Aboriginal. She was represented by Legal Aid NSW when she came to court on her tenth birthday. At court she wore a sticker from her mum saying ‘Happy 10th birthday’. – Wendy's story.
When Tyler was 13 years and 10 months he was charged with being a lookout for someone who was shoplifting. He was granted bail conditions which prevented him from entering any shop in his small town. – Tyler's story.
Mohammad was accused of stealing matches worth $2.40. Police went to his school and chased him before he hid under a desk and begged teachers to help him. Mohammad was arrested, crying in front of a classroom. Without accommodation, he was kept in custody for three days. – Mohammad's story.
We have joined with legal aid commission’s from every state and territory to make a submission calling on governments to raise the age of criminal responsibility, to stop young children like these from being treated like criminals.
In Australia, the minimum age a child can be found guilty of committing a crime is ten years old. Most similar jurisdictions have set a minimum age of at least 14 years old, which is consistent with international human rights law.
‘There is resounding agreement from the peak bodies for doctors, psychologists and lawyers that children under 14 don’t have the maturity to be held criminally responsible for their actions,’ said Dan Nicholson, Executive Director Criminal Law at Victoria Legal Aid. ‘Anyone who has a 10 year-old child, like I do, knows that this makes sense.’
‘The stories in this National Legal Aid submission show that these laws have the harshest impact on the kids in our society who need the most care and support – those from disadvantaged backgrounds or who have experienced violence and trauma. Aboriginal and Torres Strait Islander children are clearly over-imprisoned, making up almost 70 percent of the children in youth jails. For these reasons, we are calling on Governments to work together to change these laws and invest in preventative and supportive services for kids and families,’ said Dan.
Across Australia each year about 600 children 14 and under are jailed. The submission, which contains evidence from eight legal aid commissions, notes the majority of children in custody are held on remand before being found guilty of any crime and that even short periods in jail have far-reaching consequences.
Most children in the youth justice system have experienced serious trauma and early life stresses such as abuse or neglect, as well as mental health issues and cognitive impairment. Early intervention and support for adolescents to address their underlying issues, rather than criminal responses, can prevent ongoing behavioural and emotional patterns which can lead to offending.
Doli incapax is not a solution to raising the age
Mohammed's story – Mohammad participated in an interview without legal advice. He did not make any admissions about 'doli incapax' but his intoxicated father indicated that he knew right from wrong. Relying on this interview, the police charged Mohammad and placed him on bail.
The common law principle ‘doli incapax’ presumes that children under the age of 14 are unable to comprehend the distinction between bad behaviour and criminal acts, and therefore they should not be held criminally responsible. However, this presumption does not prevent a child’s contact with the criminal justice system.
‘Often we see that a child will already have been arrested, may have been in custody on remand, and will be required to undergo what can be a difficult and emotional assessment, before they can rely on the presumption of doli incapax to have the criminal charges resolved’, said Dan.
‘This means that the child is already in the system and is subject to the negative impacts of that exposure. Evidence shows that allowing young children to be charged with criminal offences makes it more likely that they will reoffend as adults’, he said.
The submission contains several examples of how doli incapax is failing young children. ‘Our lawyers tell us doli is used inconsistently or not at all, can cause delays and only happens once a child is in the criminal justice system already,’ said Dan.
‘It does not adequately protect young children. The only clear and just solution is to raise the minimum age’ he said.
More information
Read the National Legal Aid submission to the Council of Attorneys-General’s Review of the Minimum Age of Criminal Responsibility.
Read about the science of raising the age of criminal from Amnesty International
Read more about legal aid commission’s young clients
Wendy – at court for her tenth birthday
Wendy is Aboriginal. She was represented by Legal Aid NSW when she came to court on her 10th birthday. She presented at court with a sticker from her mum saying ‘Happy 10th birthday’.
Police had charged Wendy and brought her to court for a break and enter and a forensic procedure application to obtain her fingerprints.
The charge related to an offence that had occurred a year ago when Wendy was under the minimum age of criminal responsibility. As such, the charge was illegal and was withdrawn. The forensic procedure application was also withdrawn.
Tyler – over-policing leads to impossible bail conditions
Tyler is Aboriginal and diagnosed with Fetal Alcohol Spectrum Disorder. He comes from a poor social economic background. He was arrested by police when he was 11 years old for stealing a kebab after he had not eaten for two days. He was referred to a youth justice conference.
Tyler was placed on a NSW Police Suspect Targeted Management Plan and frequently stopped and searched by police. He would regularly be arrested and charged for offensive language and resist arrest.
When Tyler was 13 years and 10 months he was charged with being a lookout for shoplifting. He was granted bail conditions which prevented him from entering any shop in his small town. The police sought to use the youth justice conference he received when he was 11 to rebut doli incapax.
Charlie – now at risk of homelessness for minor behaviours
Charlie was a 13 year old Aboriginal boy who had travelled to NSW from Queensland with his mother. Charlie was mucking around with his friend in a shop. They were throwing a basketball to each other. Staff contacted police who charged Charlie with offensive behaviour and, when Charlie argued with them, resist arrest. Charlie was granted bail with a condition to not enter any shops and an overnight curfew unless he was with his mum.
Charlie’s mum frequently abandoned him so that he was left homeless and he was arrested for breaching his curfew and spent time in custody.
Ultimately, his mum returned to Queensland and Charlie was left at risk of homelessness.
Mohammad – let down by poor administration of doli incapax
Mohammad was aged 13 and 2 months at the time of his alleged offending. The police had arranged for Mohammad’s dad to bring him to the police station the morning after the alleged offending. However, that morning, three police attended Mohammad’s address, woke him and arrested him. Mohammad’s dad was intoxicated and taken to the station to be his support person. Mohammad participated in an interview without legal advice. He did not make any admissions about doli incapax but his intoxicated father indicated that he knew right from wrong. Relying on this interview, the police charged Mohammad and placed him on bail.
Shortly afterwards, Mohammad was accused of stealing a box of matches worth $2.40. Police attended his school where he was in class. Police chased him around the school and he hid under a desk and begged teachers to help him. Mohammad was arrested whilst crying in front of a classroom of students. Without accommodation, he was kept in custody for three days.
He remained on bail for eight months until the hearing date, when the prosecution conceded that they had no evidence to rebut doli incapax. After Mohammad’s arrest and detention in custody, he was fearful of returning to school and did not attend again for seven months.
Reviewed 14 April 2022