Youth justice in Australia 2023–24

International agreements, standards and guidelines

Many countries have developed or revised their youth justice policies and practices over the last 30 years.

A major influencing factor has been the introduction of international agreements and guidelines by the United Nations. For example, under the United Nations' 1989 Convention on the Rights of the Child, member states regularly report to the United Nations Committee on the Rights of the Child. This has influenced youth justice systems in many countries, including the principles underpinning each system, and the decision-making processes. Australia has been signatory to this convention since 1990.

Three additional influential United Nations agreements that relate specifically to youth justice are the:

• Standard Minimum Rules for the Administration of Juvenile Justice 1985 (also known as the Beijing Rules)
• Guidelines for the Prevention of Juvenile Delinquency 1990 (also known as the Riyadh Guidelines)
• Rules for the Protection of Juveniles Deprived of their Liberty 1990 (also known as the Havana Rules).

Within the broad framework of these international agreements, the philosophies, systems and processes for dealing with young people involved in criminal behaviour vary substantially among countries. In addition, the United States of America has not ratified the Convention on the Rights of the Child, so its youth justice policies and practices are not bound by the Convention's principles.

Age for treatment as a young person

Article 40(3) of the Convention on the Rights of the Child (UN 1989) encourages member states to establish a minimum age of criminal responsibility but previously did not specify a particular age.

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'. It commends those that have set higher minimum ages at 15 and 16.

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 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 2023). This followed on from the Royal Commission into the Protection and Detention of Children in the Northern Territory (Royal Commission and Board of Inquiry 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.

Since then, the Northern Territory became the first Australian jurisdiction to raise the minimum age of criminal responsibility in November 2022, from 10 to 12 years. The change was implemented in August 2023. The Australian Capital Territory raised the minimum age of criminal responsibility in November 2023, also from 10 to 12 years.

The age of criminal responsibility varies considerably across countries. An investigation of 90 countries found that the minimum age of criminal responsibility ranged from 6 to 18; the median age was 13.5 (Hazel 2008).

In Australia, along with New Zealand, England and Wales, young people are deemed to have criminal responsibility if they are aged 10 or over (Table 10.1).

But there are some allowances for children in younger age brackets. For example, young people in New Zealand aged 10 or 11 can only be prosecuted for murder and manslaughter (Child Rights International Network 2020).

In Australia, 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. In England and Wales, young people aged under 12 cannot be prosecuted for an offence, though the offence may be included on a child's criminal record (Child Rights International Network 2020).

In other countries, minimum ages of criminal responsibility include:

• 11 in Japan
• 12 in Canada
• 13 in Greece
• 14 in Germany, Italy and Spain
• 15 in Scandinavian countries (Table 10.1).

Some countries have alternative programs to avoid sentencing young people of a certain age to penalties such as deprivation of liberty. For example, in Greece, where the minimum age of criminal responsibility is 13, young people aged 13–15 may be required only to undertake reformatory or therapeutic measures, rather than receive a penalty of detainment.

Similarly, in Japan, where the minimum age of criminal responsibility is 11, young people aged 11–14 may be required to attend Juvenile Training Schools administered by the Ministry of Justice Correction Bureau rather than receive detention.

1. In Australia, 2 territories have raised the age of criminal responsibility. The Northern Territory raised the age to 12 in August of 2023 and the Australian Capital Territory raised the age to 12 in November 2023 and will raise the age to 14 in mid-2025. Both of these changes came into effect in the 2023–24 reporting year.

Source: Child Rights International Network 2023.

Almost all countries have separate criminal justice systems for young people and adults, each with their own legislation.

The age at which individuals are processed as adults in the justice system is referred to as 'criminal majority'. In Australia, the age of criminal majority is 18 in all jurisdictions. In Queensland, legislation to increase the age of criminal majority to 18 was enacted on 12 February 2018 – before then, it was 17.

This is consistent with the typical age of criminal majority internationally (18), though it does vary between countries. Countries with a higher minimum age of criminal responsibility tend to have a higher age of criminal majority (Hazel 2008).

Principles, services and outcomes

Key principles established in the United Nations' agreements and guidelines include:

• the ability to divert young people away from further involvement with the youth justice system, where appropriate
• the notion that young people should be detained only as a last resort, and for the shortest appropriate time (UN 1985, 1989).

The principle of detention as a last resort can be found in youth justice legislation in each state and territory in Australia.

In August 2024, Queensland introduced legislation to reword and clarify youth justice principle 18 (detention as a last resort) in the Youth Justice Act 1992. The principle now reads:

A child should be detained in custody, where necessary, including to ensure community safety, where other non-custodial measures of prevention and intervention would not be sufficient, and for no longer than necessary to meet the purpose of detention.

Diversion is also a key principle of youth justice systems in all jurisdictions in Australia. This takes various forms, including:

• complete diversion from the system (such as an informal warning by police)
• referral to services outside the system (such as drug and alcohol treatment programs)
• diversion from continued contact with the system by the police or courts (through mechanisms such as conferencing – a facilitated meeting to discuss the offence and its impact, and to make a plan for action).

Again, there are wide variations between countries, and various diversionary approaches have emerged since the 1960s (Hazel 2008).

The police often play a key role in diversionary action, as they are generally the first point of contact a young person has with the justice system. In a 1998 United Nations survey, 19 of 51 countries surveyed allowed diversion to be instituted by the police (Hazel 2008).

The types of outcomes and sentences available for young offenders vary among countries. For example, young people in custody in the Netherlands can be released to take part in training courses or treatment during their sentences. Other outcomes include intermittent custody (such as night or weekend detention) and training in various forms, such as in Austria where trainees receive a wage throughout their vocational training (Hazel 2008).

Rates of young people in detention in various countries generally reflect the principles and operation of their respective youth justice systems. High rates are commonly seen in countries that operate under what is often termed a 'justice model', which emphasises accountability and punishment. Lower rates are seen in countries that operate under a 'welfare model', which focuses on rehabilitation and meeting the needs of the young person (Noetic Solutions 2010).

Countries with lower rates of young people in detention tend to adopt the principle of custody as a last resort (Hazel 2008).

Some countries have alternated between the justice and welfare models, and aspects of both approaches are increasingly used in many countries. The Australian youth justice system has typically used elements of both the welfare and justice models (Richards 2011).

International information on numbers of young people involved in youth justice systems as a whole is limited, but some data are available on numbers and rates of young people in detention in selected countries.

On an average day in 2022–23, the rate of young people in youth detention in Australia (2.7 per 10,000 young people) was higher than in England and Wales (0.8 per 10,000) and Canada (2.5 per 10,000) but lower than the United States of America (6.3 per 10,000) (Table 10.2, see footnotes for the differences in measurement).

Rates of young people in detention are similar to previous reporting periods for Australia (2.7 per 10,000), England and Wales (0.8), the United States (9.4) and Canada (2.4).

1. Data for 2023–24.
2. Data for young people aged 12–17 in detention on an average day during 2022–23.
3. Average monthly population of young people aged 10–17 in custody for the year ending March 2023.
4. Number in youth detention in 2021.

Sources: Office for National Statistics 2024; Puzzanchera et al. 2021; Puzzanchera et al. 2023; Statistics Canada 2024; Youth Justice Board for England and Wales 2024; YJ NMDS: tables S74a and S75a.