Youth detention population in Australia 2023

In Australia, young people are deemed to have criminal responsibility if they are aged 10 or over. Young people aged between 10 and 14 are given the presumption of doli incapax, meaning that they cannot be held criminally responsible unless it can be proved beyond reasonable doubt that the young person knew that their conduct was wrong (Child Rights International Network 2020).

The UN Committee on the Rights of the Child (2019) recently issued an update to the International Standards for the Minimum Age of Criminal Responsibility. In paragraph 22 of its 'General comment no. 24 (2019) on children's rights in juvenile justice', the Committee deemed the previously recommended age of criminal responsibility of 12 years to be too low.

The Committee now encourages state parties to ‘take note of recent scientific findings, and to increase their minimum age to at least 14 years'.

The recommendation to increase the minimum age of criminal responsibility reflects current research in child development and neuroscience which provides evidence that the capacity for abstract reasoning is not fully developed in children aged 12 and 13 (UN Committee on the Rights of the Child 2019).

In Australia, the Meeting of Attorneys-General (MAG) reviewed Australia's age of criminal responsibility. MAG noted that the Australian Capital Territory and the Northern Territory have committed to raising the minimum age of criminal responsibility, and states have supported the development of proposals to raise the age, having regard to any carve-outs, timing and discussion of implementation requirements (MAG 2022). This followed on from the Royal Commission into the Protection and Detention of Children in the Northern Territory (Royal Commission, Australian Government 2017), which resulted in recommendations for Australia to:

• raise the minimum age of criminal responsibility from 10 to 12
• keep young people aged 14 and under out of detention unless they have committed a serious crime or pose a serious risk to the community.

In August 2023, the Northern Territory raised the minimum age of criminal responsibility from 10 to 12.

In May 2023, the Australian Capital Territory introduced legislation to raise the criminal age of responsibility to 12 initially (this was implemented in November 2023), then to 14 within the next 2 years (which is expected to be implemented in mid-2025).

In April 2023, Victoria made an announcement to raise the criminal age of responsibility to 12 by the end of 2024, and to 14 in 2027.

In June 2022, Tasmania committed to raising the age of criminal detention from 10 to 14 years old. Subsequently, in September 2023, the Commission of Inquiry into the Tasmanian Government's Responses to Child Sexual Abuse in Institutional Settings report recommended that the Government work towards increasing the minimum age of detention (including remand) to 16 years by developing alternatives to detention for children aged 14 and 15 years who are found guilty of serious violent offences and who may be a danger to themselves or the community.