Current Issues in Criminal Justice

ISSN: (Print) (Online) Journal homepage: https://www.tandfonline.com/loi/rcic20

Act now: raise the minimum age of criminal

responsibility

Thomas Crofts

To cite this article: Thomas Crofts (2023) Act now: raise the minimum age of
criminal responsibility, Current Issues in Criminal Justice, 35:1, 118-138, DOI:
10.1080/10345329.2022.2139892

To link to this article: https://doi.org/10.1080/10345329.2022.2139892

Published online: 10 Nov 2022.

Submit your article to this journal

Article views: 1917

View related articles

View Crossmark data

Citing articles: 1 View citing articles

Full Terms & Conditions of access and use can be found at

https://www.tandfonline.com/action/journalInformation?journalCode=rcic20
CURRENT ISSUES IN CRIMINAL JUSTICE
2023, VOL. 35, NO. 1, 118–138
https://doi.org/10.1080/10345329.2022.2139892

RESEARCH ARTICLE

Act now: raise the minimum age of criminal responsibility

a,b
Thomas Crofts
a
School of Law and Department of Social and Behavioural Sciences, City University of Hong Kong, Hon Kong;
b
Northumbria Law School, Northumbria University, Newcastle, UK

ABSTRACT KEYWORDS
There has been a long-standing debate throughout Australia about Age of criminal
the age at which a child should be subjected to criminal responsibility; doli incapax;
proceedings for wrongful behaviour. In February 2019, an MACR; youth justice;
Attorneys-General Working Group was formed with the task of #RaiseTheAge.
reviewing the minimum age of criminal responsibility (MACR) and
making recommendations for reform across Australia. So far, no
decision has been made about whether and to what age the
MACR should be raised. Now individual jurisdictions are pushing
for change rather than waiting for a uniform national approach.
This article examines the ongoing debate in Australia and
considers what reforms should be undertaken in relation to the
MACR. It endorses states and territories acting individually to
raise the MACR to at least 14 but preferably higher. It also
proposes that if the MACR is raised only to 12 or 14 there is a
need for doli incapax or some other defence for older children.

Introduction
It is commonly accepted that there is an age under which children should not be sub-
jected to criminal proceedings for engaging in wrongful behaviour. Where there is less
agreement and intense debate, particularly in recent years in Australia, is what that
age level should be. Traditionally, at common law there are two age levels of criminal
responsibility, a lower one where there is a conclusive (irrebuttable) presumption of inca-
pacity and a higher age level where this presumption of incapacity (doli incapax) is rebut-
table. Because the presumption of incapacity at the lower age level cannot be rebutted, it
means that a child below this age cannot be dealt with in criminal proceedings. It is there-
fore often termed the minimum age of criminal responsibility (‘MACR’). When a child
reaches the higher age level, the presumption of doli incapax may be rebutted if the pro-
secution can prove beyond reasonable doubt that the child understood their behaviour to
be seriously wrong (RP v The Queen, 2016). Historically, throughout Australia, children
up to the age of 7 were conclusively presumed to be doli incapax and the rebuttable pre-
sumption applied until the age of 14. While the upper age level at which the rebuttable
presumption applies has remained stable in Australia (with one exception1) the MACR
was gradually raised to its current level of 102 across Australia between 1976 and 2000

CONTACT Thomas Crofts tcrofts@cityu.edu.hk School of Law and Department of Social and Behavioural
Sciences, City University of Hong Kong, Hong Kong and School of Law, Northumbria University, Newcastle, UK
© 2022 Sydney Institute of Criminology
 CURRENT ISSUES IN CRIMINAL JUSTICE 119

(for a historical account, see Crofts, 2016).3 Since that time, there have been ongoing calls
for an increase in the MACR throughout Australia to 12, 14 or higher.
This article explores these developments and considers what shape reform should take,
beginning with a brief exploration of the recent debates throughout Australia around
raising the MACR. It will examine what it means to be criminally responsible and, in
doing so, discuss research which suggests that children are in the process of developing
the capacities that are considered to underlie an ascription of criminal responsibility.
Until recently, this research had failed to convince governments to raise the MACR,
suggesting that setting the age level is not just a question of determining when children
are developed enough to understand the wrongfulness of their behaviour. It is also a
policy question about how a society wants to respond to children who engage in wrong-
doing. The article therefore assesses whether there are good policy reasons not to raise the
MACR based on the argument that there is a need to retain the possibility of interventions
through the criminal justice system for serious or repeat wrongdoing. The article will
show that there are not. Rather, there are powerful reasons for increasing the MACR
whether one takes a legal or policy view of the age of criminal responsibility. The question
of what reforms should be undertaken will then be addressed. Based on research from
developmental psychology and neuroscience, research showing the negative impact of
early contact with the criminal justice system and research showing the characteristics
of children typically involved in the criminal justice system, it will be argued that children
need protection from the criminal justice system until adulthood. Raising the MACR will
ensure that Australia complies with its international obligations, removes children with
complex needs and children with neurodevelopmental delays, disorders and disabilities
from the criminal justice system and goes some way to addressing the overrepresentation
of Indigenous children in that system. Given that it is likely that the MACR will only be
raised to 12 or 14, the article will also argue that there is a need for some other measures,
either increasing the age at which the presumption of doli incapax applies or introducing
a new defence, to protect older children4 from the criminal justice system.

Recent debates
The last change to the MACR in Australia was in 2000, when Tasmania and the Australian
Capital Territory (‘ACT’) responded to a recommendation by the Australian Law Reform
Commission (‘ALRC’) (1997) that there should be a uniform MACR of 10 across Australia.
Even before this increase, there was already criticism of settling on a uniform MACR of 10.
The UN Committee on the Rights of the Child (‘UN Committee’) noted that it considered
an age level of 10 to be too low (ALRC, 1997, para 18.15; UN Committee, 1997, para 29) and
has continually called on Australia to raise the MACR. In the last few years, calls for an
1
The one exception to this is Queensland, where the maximum age at which the presumption of doli incapax applied was
raised to the age of 15 in 1976 by the Criminal Code Amendment Act 1976, s 19 but later reduced again to 14 by the
Criminal Law Amendment Act 1997, s 12.
2
There was also an increase from the age of seven to eight in England and Wales in 1933, which was followed in New
South Wales in 1939, South Australia in 1941 and Victoria in 1949.
3
Queensland in 1976, New South Wales (NSW) in 1987, Western Australia in 1988, Victoria in 1989 and South Australia in
1993, the Australian Capital Territory (ACT) and Tasmania in 2000.
4
Generally, throughout this article, the terms child and children will be used in reference to persons under the age of 18
unless otherwise stated.
120 T. CROFTS

increase in the MACR have intensified and have come from a diverse range of sources,
including academics, campaigners, NGOs, politicians and professional bodies (see, as
examples, Amnesty International, 2018; Australian Human Rights Commission, 2021; Aus-
tralian Medical Association, 2019; Crofts, 2019; Cunneen, 2020; Law Council, 2021;
National Legal Aid, 2020; O’Brien & Fitzgibbon, 2017; Royal Commission, 2017; Shoe-
bridge, 2021; UN Committee, 1997, 2005, 2012 and 2019; UNSW Centre for Crime, Law
and Justice (‘UNSWCCLJ’), 2021; and #RaiseTheAge, undated, for an extensive list of
organisations supporting an increase in the MACR). Despite the breadth of support for
an increase in the MACR and the compelling evidence put forward, there has been a striking
level of inertia, if not resistance, displayed by Commonwealth, state and territory govern-
ments towards making any change in the MACR; that is, until recently.
The main drive behind the current push for an increase in the MACR seems to have
been the airing in August 2016 of an ABC Four Corners program which exposed the
cruel treatment of children in detention in the Northern Territory. The disturbing
visual images shocked the Australian public and gave a rare public insight into the treat-
ment of children who get into trouble with the law. Only a few days later, a Royal Com-
mission into the Protection and Detention of Children in the Northern Territory (‘Royal
Commission’) was established. The Royal Commission (2017, vol. IIB, p. 418) rec-
ommended, among other things, that the MACR be raised to 12, the presumption of
doli incapax be retained for those aged 12 and 13 and that no child under 14 should
be held on remand or in detention. Soon after the release of the Royal Commission’s
Final Report, the NT Government (2018) announced that it would accept the intent
and direction of all the Report’s recommendations. This report also sparked action on
a national level. The Commonwealth Attorney General agreed in November 2018 to
establish a Council of Attorneys-General Age of Criminal Responsibility Working
Group to examine whether to raise the MACR. The Working Group was formed in Feb-
ruary 2019 with the plan that it would ‘review this matter, drawing from relevant juris-
dictional and international experience, and report back within 12 months’ (Council of
Attorneys-General, Undated). However, almost four years later, the Working Party
has still not delivered a proposal for national action on raising the MACR.
The Working Group did engage in a public consultation in February 2020 but has not
published any of the submissions that it received. In July 2020, it was announced that the
Working Party had decided to defer any report or decision because it had ‘identified the
need for further work to occur regarding the need for adequate processes and services for
children who exhibit offending behaviour’ (Council of Attorneys-General, 2020, p. 2).
There was an agreement at the Meeting of Attorneys-General in November 2021 to
develop a proposal for an increase in the MACR to 12, with consideration of any possible
carve outs (2021, p. 4). However, despite such agreement, it still seems that little progress
has been made. When Speakman, the NSW Attorney General, was questioned in August
2022 about whether the uniform national approach to raising the MACR had failed, he
replied that it had stalled but not failed (2022, p. 15). He noted that the Attorneys-
General had agreed at a meeting in August 2022 to continue working on a proposal to
increase the MACR, but that such a proposal would probably not be developed until
the middle of 2023 (2022, p. 15). So far, the signs are not promising for national
uniform action in relation to raising the MACR. In July 2021, the Commonwealth repre-
sentative at the United Nations Human Rights Council rejected calls from 30 nations for
 CURRENT ISSUES IN CRIMINAL JUSTICE 121

Australia to raise the MACR to 14, on the basis that it was the state and territory govern-
ments’ responsibility to legislate on any such change (O’Brien, 2021).5
Despite, and perhaps precisely because of, this lack of decision by the Working Group,
or the Council of Attorneys-General (since May 2022: Standing Council of Attorneys-
General), individual jurisdictions are independently pressing ahead for change. There
have been reports prepared in the ACT (McArthur, Suomi, & Kendall, 2021), NSW
(Drabsch, 2022) and Queensland (Community Support and Services Committee, 2022)
examining the issue of raising the MACR. There have also been several attempts
through Private Members Bills at the Commonwealth (Crimes Legislation Amendment
(Age of Criminal Responsibility) Bill 2019) and state level (Children (Criminal Proceedings)
Amendment (Age of Criminal Responsibility) Bill 2021 (NSW), Criminal Law (Raising the
Age of Responsibility) Amendment Bill 2021 (Qld)) to increase the MACR. So far, these
attempts have been unsuccessful. It seems that this is largely because some states and ter-
ritories would prefer there to be national uniform action to raise the MACR and plans in
place for alternatives methods to address wrongdoing by the young. The Atkinson Report
(2018, p. 106) in Queensland recommended, for example, that the government should
support raising the MACR to 12 subject to national agreement, a comprehensive impact
analysis and the implementation of needs-based programs and diversions. Similarly,
after reviewing the Criminal Law (Raising the Age of Responsibility) Amendment Bill
2021 (Qld), the Queensland Community Support and Services Committee (2022) rec-
ommended against passing the Bill. It echoed the Atkinson Report in calling for the
MACR to be raised to 12 as part of a national uniform approach (2022, p. 18, Recommen-
dation 3) and noted the comments of Atkinson that raising the MACR to 14 would cur-
rently be a ‘bridge too far’ (2022, p. 9). In NSW, the Attorney General has similarly
commented that the ‘position [in NSW] is we are part of that national process, trying to
find common ground among the States’ (Speakman, 2022, p. 14). In Tasmania, the prefer-
ence for national, uniform action has led the Tasmanian Government to commit to raising
the minimum age of detention to 14, but not the MACR (Jaensch, 2022). The Minister for
Education, Children and Youth expressly pointed out that ‘the minimum age of detention
is separate and distinct issue to the age of criminal responsibility’ (Jaensch, 2022).
It now seems likely that some jurisdictions will increase the MACR without waiting
for national uniform action. There is, however, a difference in the ages proposed in
the recent reform efforts. The ACT Government (2021) released a Listening Report in
November 2021 in which it committed to making an increase in the MACR a reform pri-
ority. In September 2022, the ACT Attorney General, Rattenbury, confirmed that legis-
lation is being prepared to raise the MACR in two stages; first to 12 and then in two years
to 14 (Bladen, 2022). In South Australia, the Young Offenders (Age of Criminal Respon-
sibility) Amendment Bill 2022 was introduced into the South Australian Parliament in
July 2022, which proposes to raise the MACR to 14. In the Northern Territory, the
Labor Government has introduced the Criminal Code Amendment (Age of Criminal
Responsibility) Bill 2022, which proposes to increase the MACR to 12 and retain the stat-
utory form of the presumption of doli incapax for 12- and 13-year-olds.

5
Criminal law, and consequently, setting the age of criminal responsibility is primarily the responsibility of the state and
territory governments given that criminal law is not listed as a Commonwealth power under any of the heads in s 51 of
the Australian Constitution (Commonwealth of Australia Constitution Act).
122 T. CROFTS

These recent developments indicate that Australia could be returned to a situation like
that criticised by the ALRC in 1997 where a child may be subject to prosecution in one
jurisdiction but not another for the same behaviour merely due to their age. This is not an
ideal situation, but it is preferable to waiting even further for an already long-overdue
national uniform approach to be agreed upon and then implemented. While raising
the MACR to 12 or 14 is commendable as a first step, this article will argue that this
does not go far enough. There are compelling reasons, explained below, to also extend
protection to older children.

Criminal responsibility and the child’s developing capacities

The idea that criminal law consequences should only be imposed on those who are
responsible for their criminal behaviour is central to criminal law and essential to its
legitimacy (Lacey, 2016, p. 1). While there are more complex ways of understanding
criminal responsibility (see, eg, Lacey, 2016; Tadros, 2005), a basic idea is that a
person can rightly be held accountable for violating the criminal law because they are
‘naturally endowed with these two great faculties, understanding and liberty of will’
and so have the capacity to choose to obey the law (Hale, 1736, pp. 14–15). Accordingly,
a normative legal view is that criminal responsibility is based on a person having cogni-
tive capacity (the ability to understand what the law requires them to do or not to do and
the ability to understand the nature of the act committed and its consequences) as well as
volitional capacity (the ability to control their actions and behave in compliance with the
legal norms) (Hart, 1968, p. 218; Lacey, 2001, p. 353). If these capacities are lacking, then
the person has not freely chosen to act as they did and so should not be held criminally
responsible. Capacity is then particularly important in determining status responsibility
(Tadros, 2005, p. 9). Status responsibility relates to ‘determining whether a person is an
appropriate person to be held criminally responsible in general’ (Tadros, 2005, p. 9). In
order to make application of basic principles of criminal responsibility easier, criminal
law has developed a set of rules and principles to determine when a person should or
should not be held criminally responsible and methods of interpreting and applying
these rules and principles (Lacey, 2016, p. 1). One such example is fixing an age under
which younger children are conclusively presumed to lack the capacity to be held crim-
inally responsible and a higher age level where this presumption is rebuttable.
Taking this view of criminal responsibility, there is mounting evidence, particularly
from developmental psychology and neuroscience, that children, even beyond teenage
years, are in the process of developing the capacities thought to underlie an ascription
of criminal responsibility. As the Royal Commission (2017, vol. I, p. 134) notes:
‘Recent neurobiological research has prompted a reassessment of how recognition of
developmental immaturity should affect the way society treats young offenders, particu-
larly in determining the age at which criminal responsibility should be imposed’. Such
research is showing that children ‘are less pyschosocially mature than adults in ways
that affect their decision-making in antisocial situations’ (Cauffman & Steinberg, 2000,
p. 759). They are in a period of neuro-developmental immaturity, where they are
prone to impulsive, sensation-seeking behaviour, with an underdeveloped capacity to
gauge the consequences of actions (Sentencing Advisory Council of Victoria, 2021).
They tend to be less future-orientated with their decisions (Nurmi, 1991), weigh gains
 CURRENT ISSUES IN CRIMINAL JUSTICE 123

more heavily than losses compared to adults (Benthin, Slovic, & Severson, 1993; Furby &
Beyth-Marom, 1992) and have a heightened vulnerability to peer influence (Steinberg &
Monahan, 2007; Gardner & Steinberg, 2005).
It has been generally thought that increased arousal, risk-taking and discounting of
future consequences during childhood is the result of an imbalance between the more
slowly developing frontal lobes (responsible for cognition including judgement,
empathy, consequential thinking, the inhibition of impulses and coherent planning)
and the faster-developing more centrally-located amygdala (responsible for reward
and emotion-processing) (Royal Society, 2011, p. 13). Other research is now showing
that brain development and activation may be affected by a more complex relationship
between different brain regions, as well as the impact of hormones and environmental
factors (for discussion see Crofts, Delmage, & Janes, 2022). Factors such as child abuse
or neglect can ‘impair brain development leading to anxiety, impulsivity, poor affect
regulation, hyperactivity, poorer problem-solving and impoverished capacity for
empathy’ (Centre for Social Justice, 2012, p. 202).
Research indicates that children with neurotypical brain development lack the capacities
required to be found criminally responsible, and this is all the more so for children with
non-neurotypical brain development. Brain trauma, which can negatively impact on cog-
nitive and volitional capacities, may be caused by a range of factors, including:
poor prenatal care, a lack of early life access to appropriate physical and mental health
support from families (including healthy diets which allow the brain to grow normally),
exposure to violence and other traumatic experiences, limited access to other healthcare
resources and access to prosocial education experiences, as well as exposure to things that
may damage brain development such as head injuries, drugs and alcohol, and the effect
of poor socio-economic conditions. (Crofts et al., 2022, p. 11)

Care must be taken when extrapolating such scientific findings into legal constructs,
given that ‘scientific absolutes do not always translate into legal absolutes’ (Delmage,
2013). Yet, even with a due amount of care to not over-simplify such research and
what it means for law, this brief summary of research on children’s brain development
shows that there is overwhelming evidence that young children are in the process of
developing the capacities that are core to the concept of criminal responsibility. There
is, as the Royal Society (2011, p. 13) observes, ‘huge individual variability in the
timing and patterning of brain development’. However, research suggests that is
highly unlikely that these capacities are fully developed at the age of 12 or 14 and, in
fact, they may not be fully developed until adulthood. The fact that this significant
body of research has so far failed to convince governments that the MACR should be
raised suggests either that governments are not convinced by such research, do not con-
sider it relevant to legal constructs of responsibility or, more likely, that there are other
factors at play which speak against raising the MACR.

The necessity and appropriateness of addressing childhood wrongdoing

in the criminal justice system
If setting the MACR were just a normative legal question, determined by the age at which
it is thought that children have developed the capacities thought necessary for an
124 T. CROFTS

ascription of responsibility, it is clear that it should be set much higher than 10. However,
it is evident that is also a policy issue. It is a socio-political question about how a state
wants to deal with children who engage in wrongful conduct and about how to
manage public opinion concerning what is an appropriate way to address wrongdoing
by children, as well as an economic question about how and where resources should
be allocated. So far, governments have been unwilling to move away from the idea
that the MACR should be retained at 10 so that there is an opportunity to intervene
and deal with children who engage in wrongdoing inside the criminal justice system.
One argument supporting this position is that most procedures are modified to take
account of the child’s age and most measures available are not punitive, so there is
less need to protect children from that system (such an argument was already made
by Williams in 1954). This type of view might explain why debates tend to focus less
on the concept of criminal responsibility as it relates to a child’s capacity to be held
responsible (legal view), and focus more on the age at which certain procedures and
measures are appropriate (policy view) (Fionda, 2001, p. 85).
Such an argument tends to downplay, or even overlook, the fact that the system for
dealing with children accused of criminal behaviour is still embedded within the criminal
justice machinery (Arthur, 2016). Regardless of how tempered that system is by child-
oriented processes and measures, it still carries with it many negative impacts (discussed
further below). Another argument, which does not necessarily downplay or overlook the
punitive aspects of the criminal justice system, is that criminal justice responses need to
be available for children who commit serious crimes or who are repeat offenders if other
measures are inappropriate or have been ineffective. Taking a policy view of criminal
responsibility, the questions that will be investigated in this section are: is it really necess-
ary to deal with wrongdoing by children within the criminal justice system, and is this
really the best place to do so?

Young children do not offend in large numbers and generally do not commit
serious crimes
In response to the argument that there should be the opportunity to address wrongdoing
by children within the criminal justice system, it should firstly be noted that the age group
that would be affected by an increase in the MACR to the levels proposed in Australia are
not responsible for a great deal of offending. Furthermore, offences committed by
children aged under 14 are generally non-violent and less serious than those committed
by older children and adults. Australian Bureau of Statistics (2022) data shows that in
2020–21, children aged 10–14 committed only 4.3% of recorded offences. The most
common offences committed by 10-year-olds were unlawful entry with intent, property
damage and environmental pollution and acts intended to cause injury; for children aged
11–13 the most common offences were acts intended to cause injury, theft and unlawful
entry with intent. A Report by the UNSWCCLJ (2021, p. 14) highlights that the offences
committed by children which proceed to court in NSW tend not to be personal harm
offences, with only 15% of court appearances relating to assault and sexual offences.
The offences which make up around two-thirds of court appearances relate to theft,
justice procedures and public order (including property damage and disorderly
conduct) (UNSWCCLJ, 2021, p. 14). The most common offence that 10- and 11-year-
 CURRENT ISSUES IN CRIMINAL JUSTICE 125

olds, as well as 12- and 13-year-olds, were appearing before the court for was breaching
bail conditions. Similarly, in the ACT it was found that ‘10–13-year olds’ offending is
generally less serious than that of older children or adults, with no offences such as
murder, manslaughter or sexual assault recorded over the five years of the review
period’ (McArthur et al., 2021, p. 27).
Data from the Australian Institute of Health and Welfare (‘AIHW’) also shows that the
number of young people in detention in Australia is low, particularly for those aged 10
and 11. On an average day in 2019–20, the number of children aged 10–13 in detention
was 41.2, of these 0.1 were aged 10, 2.2 were aged 11, 10.1 were aged 12 and 28.8 were
aged 13 (AIHW, 2021, Table S74a). During the year 2019–20, the number of children
aged 10–13 in detention was 499. Of these, 43 were aged 10–11, 147 were aged 12 and
309 were aged 13 (AIHW, 2021, Table S74b). Some jurisdictions are using detention
more than others, with Queensland placing the highest number of children in detention
and Tasmania and the ACT the fewest. The numbers of children under youth justice
supervision is also not high in Australia. On an average day in 2019–20, the number
of children aged 10–13 under supervision was 240.2, of these 1 was aged 10, 11.4 were
aged 11, 47.2 were aged 12 and 180.6 were aged 13 (AIHW, 2021, Table S1a). Again,
Queensland used supervision the most and Tasmania and the ACT the least.

Diversion is the preferred response to wrongdoing by children

The data shows that only a small number of children who commit criminal offences are
processed formally through criminal proceedings and a smaller number still are thought
to be in need of detention. Most children who engage in wrongful conduct are dealt with
through diversionary measures, such as cautioning or conferencing. Diversion is well
entrenched as a means of responding to wrongdoing by children. The UN Convention
on the Rights of the Child promotes, where appropriate and desirable, the use of
measures other than judicial proceedings for dealing with children accused of commit-
ting criminal offences (Art 40(3)(b)). This is repeated in the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice, ‘Beijing Rules’ (1985, Rule
11.1-11.2) which recommends that: ‘The police, the prosecution or other agencies
dealing with juvenile cases shall be empowered to dispose of such cases, at their discre-
tion, without recourse to formal hearings’. The commentary on Rule 11 notes that: ‘This
practice serves to hinder the negative effects of subsequent proceedings in juvenile justice
administration (for example, the stigma of conviction and sentence)’ and finds that: ‘In
many cases, non-intervention would be the best response’. In its recent General
Comment No 24, the UN Committee (2019: para 6(c)(ii)) expressly stated that an objec-
tive of this comment is: ‘To promote key strategies for reducing the especially harmful
effects of contact with the criminal justice system, in line with increased knowledge
about children’s development, in particular … Scaling up the diversion of children
away from formal justice processes and to effective programmes’.
The reason why there is such a well-established preference throughout Australia, and
around the world, for diversionary measures is that this provides more beneficial results
than engaging children in formal criminal proceedings. As the UN Committee com-
ments: ‘In addition to avoiding stigmatisation and criminal records, this approach [diver-
sion] yields good results for children, is congruent with public safety and has proved to be
126 T. CROFTS

cost-effective’ (2019: para 15). Diversionary measures can help the child to understand
the wrongfulness of their behaviour while avoiding the problems associated with
formal proceedings. It can also ‘create better opportunities to identify any family, behav-
ioural and health problems contributing to the offending behaviour … and helps to
address the causes of unacceptable conduct and not merely the consequences of it’
(ALRC, 1997, para 18.37).
Given that such low numbers are formally prosecuted, it could be argued that there is
no need to raise the MACR because not many children are being subjected to criminal
proceedings and placed in detention or under youth justice supervision. As such, criminal
proceedings are only used when necessary for serious wrongdoing or where other
measures have either failed or are thought inadequate responses. Such an argument
can, however, easily be turned around: if the number of children actually prosecuted is
relatively small, then raising the MACR will not have much impact on the operation of
the criminal justice system overall, but for those children who would otherwise be
drawn into the criminal justice system the positive impact would be significant. Even
serious and repeat wrongdoing may not be best addressed in the criminal justice
system. As Bateman points out, evidence does not support the claim that ‘holding children
to account through the imposition of criminal sanction is an effective measure for pre-
venting further offending’ (2014, p.134). In fact, evidence points to the contrary con-
clusion and indicates that ‘prosecution has no beneficial impact at any stage’ (Bateman,
2014, p. 134). This is because, as is well established in research, early contact with the crim-
inal justice system can have significant negative impacts on children.

Dealing with children inside the criminal justice system can be

counterproductive
There is much evidence to support the argument that the criminal justice system is not
effective at preventing wrongdoing by children. In fact, it can lead to a trajectory in that
system and/or lead to further crime, thus reducing, rather than enhancing, community
safety. In a Dissenting Report, Berkman (2022, para 3) points out that the Queensland
Community Support and Services Committee, 2022 Report ‘relies on and perpetuates
the false narrative that community safety relies on maintaining a criminal response to
problematic behaviour of young children’. This is because it misrepresents clear evidence
that ‘earlier contact or longer contact with the criminal legal system will negatively affect
a child’s trajectory, and increase the likelihood that they will reoffend’ (Berkman, 2022,
para 3). There is compelling evidence that children who come into contact with the crim-
inal justice system are less likely to complete their school education, undertake further
education or training, or gain employment, and that they are more likely than other chil-
dren to become chronic adult offenders (Bernberg & Krohn, 2003; McAra & McVie,
2007, p. 2010; Queensland Family & Child Commission, 2017). Research also confirms
that the relatively small number of children who are responsible for a large proportion
of the offences prosecuted tend to be children who have already appeared in court at a
young age (Weatherburn, McGrath, & Bartels, 2012). For such reasons Goldson (2013,
p. 122) has commented that a low age of criminal responsibility functions as ‘an appren-
ticeship for career criminality’.
 CURRENT ISSUES IN CRIMINAL JUSTICE 127

This suggests that there is little to be gained and much to be lost by drawing young chil-
dren into the criminal justice system. Involvement with the criminal justice system can
inflict harms that permanently deprive a child from developing into a fully autonomous
adult (Hollingsworth, 2013; Arthur, 2016). If further evidence is needed for the argument
that the criminal justice system is not the most appropriate place to respond to wrongdoing
by children and in fact may very well exacerbate problems they face, it can be found in
research about the characteristics of children typically involved in that system.

Characteristics of children in the criminal justice system

As discussed above, research from developmental psychology and neuroscience shows that
neurotypical children lack the capacities underlying criminal responsibility, and this is even
more the case with children who experience neurodevelopmental disorders or disabilities.
Yet, research is showing that there is a much higher rate of children with neurodevelopmen-
tal disabilities inside the criminal justice system when compared to those outside it (Royal
Commission, 2017: I, 135). The Royal Commission has pointed out that factors related to
neurodevelopmental disabilities may well contribute to the very behaviours that lead young
people to commit crime. Such factors include ‘impulsivity, cognitive impairment, alien-
ation and poor emotional regulation’ as well as ‘poor educational attainment, delinquency
and illicit drug use’ (Royal Commission, 2017, vol. I, p. 135). Research by Baldry, Briggs,
Goldson, and Russell (2018, p. 640) confirms that developmental and cognitive disabilities
are more prevalent in the juvenile justice sector than the general population and are also
more prevalent among Indigenous children (see also Cunneen, 2020, p. 14).
The independent report prepared for the ACT Government by McArthur et al. (2021,
p. 17) found that the major risk factors for early engagement with criminal behaviours
include ‘personality or temperament and early environmental conditions, such as
harsh and erratic parenting, early behavioural problems or trauma, history of parental
offending and the role of adverse childhood experiences’. Children who engage in wrong-
doing or who are at risk of wrongdoing experience complex needs. This term refers to
‘individuals who have a combination of: mental health problems; cognitive disability,
including intellectual and developmental disability; physical disability; behavioural
difficulties; precarious housing; social isolation; family dysfunction; and problematic
drug or alcohol use’ (McArthur et al., 2021, p. 18).
There is also a clear connection between children who come into contact with child
protection services and engagement with the criminal justice system. McArthur et al.
(2021, p. 20) refer to data which shows that such children are ‘at least 12 times more
likely than other children to offend and to come under the supervision of youth
justice services’. Research by McFarlane (2018) found that almost half (49.5%) of the
sample of 160 children appearing before the Children’s Court in Parramatta on criminal
charges had spent time in out-of-home care (OOHC). Furthermore, children who had
been in OOHC tended to enter the criminal justice at a significantly younger age and
were more likely to be placed on custodial remand than children who had not been in
OOHC. It was also found that this cohort ‘experienced greater rates of all forms of
trauma compared to the non-care group, particularly in relation to abuse and neglect,
mental illness and cognitive impairment, poor educational attainment and bereavement’
(2018, p. 423).
128 T. CROFTS

One explanation for this overrepresentation of children who experience OOHC in the
criminal justice system is the ‘accumulation and interaction of pre-existing risk factors
common to the OOHC population’ (McFarlane 2018, p. 415; Schofield, Ward, &
Biggart, 2012, p. 1). While McFarlane’s research confirms this accumulation of risk
factors, it also finds that another explanation is the ‘criminalising practices’ operating
within the OOHC system (2018, p. 424). Often children were charged with offences
unique to, and stemming from, the care environment. This is due to a process termed
‘care-criminalisation’, where ‘inadequately trained and poorly remunerated staff who
fail to understand and are unable to resolve conflict rely on police to manage children’s
behaviour’ (2018, p. 416). This means that children are exposed to the criminal justice
system for offences which would not be reported to the police if they had occurred in
the home (McFarlane, 2018, p. 424). McFarlane also found that Indigenous children
were significantly more likely to be in OOHC than non-Indigenous children (2018, p.
423).
This overrepresentation of Indigenous children filters into the criminal justice system.
Data from the AIHA (2021, Table S78) shows that 499 children aged 10–13 were in
detention during the year 2019–20, and almost two-thirds (323) of these children were
Indigenous. Alarmingly, the rate of overrepresentation of Indigenous children is
highest amongst the youngest and also smallest cohort of children in detention.
Almost three-quarters (32) of the 43 children aged 10–11 in detention were Indigenous.
Overrepresentation of Indigenous children within the criminal justice system is the result
of multiple factors. The Law Council of Australia (2021; see also Law Council of Austra-
lia, 2020) has identified these factors as ‘significant rates of mental health disorders, cog-
nitive disabilities, and hearing and language impairments, as well as discrimination,
socioeconomic disadvantage and intergenerational trauma, which are the products of
colonisation and successive government policies’.
In summary, a key theme identified by McArthur et al. (2021, p. 7) is that:
Children who are at risk of offending experience multiple health and mental health chal-
lenges, often with significant underlying trauma and disability. They are known to disengage
from school early and to develop problems with substance misuse and are, too often, from
Aboriginal and Torres Strait Islander backgrounds or from families where parents have been
incarcerated. Many of these children are involved with the child protection system and have
a history of family violence (as victims and/or perpetrators), sexualised behaviours and
sexual exploitation. They are also at risk of homelessness.

These children need care and support, which needs to be provided at an early stage. If
it is not, the issues they face can become exacerbated (Royal Commission, 2017,
vol. I, p. 134). The criminal justice system is not, however, the best place to provide
such support.

The way forward

Whether the age of criminal responsibility is seen as a legal or policy question, the above
discussion has shown that there are strong and compelling reasons to raise the MACR
from its current level of 10. The intensification of debate about the MACR, the high
degree of support for raising it and recent attempts to raise the MACR through bills at
the Commonwealth and state level suggests the question should not be whether the
 CURRENT ISSUES IN CRIMINAL JUSTICE 129

MACR will be raised, but rather, when and to what age it will be raised. The Attorneys-
General Working Party has agreed in principle to raise the MACR, and it appears that
some jurisdictions would prefer to wait until a uniform approach is concretised. The
main sticking point seems to be to what age should the MACR be raised (12 or 14)
and what should take the place of the criminal justice system for dealing with children
who commit offences below the increased MACR. It is beyond the scope of this article
to examine the latter issue; however, a few points can be made here. Firstly, only low
numbers of children—and this is particularly so with 10- and 11-year-olds—are dealt
with through formal proceedings and fewer still are placed under supervision or in deten-
tion. This means that the number of children affected by such an increase will be rela-
tively small. Secondly, there are already a number of alternative programs available
outside the criminal justice system to respond to children who offend as well as proposals
for the introduction of other changes. A higher MACR does not mean that no action
should be taken to address wrongdoing by children, just that that action should not
take place through the machinery of the criminal justice system. Thirdly, it should be
noted that many overseas jurisdictions operate with much higher MACRs than in Aus-
tralia without this leading to higher rates of offending (ACT Human Rights Commission,
2020, p. 6). The following section will examine what approach should be taken in Aus-
tralia in relation to the age of criminal responsibility.

Raise the MACR to at least 14

Until relatively recently, it seemed that it was only realistic to expect that the MACR
would be raised to 12 throughout Australia. This was the age to which several
common-law jurisdictions had raised the MACR (eg, Canada, Ireland and Scotland).
It was also the age level that the UN Committee (2007, para 30) had stated was the
minimum internationally acceptable age level in its General Comment No 10.
However, this did not mean that 12 was seen as the most appropriate age level, rather
that this was regarded as a minimum and that states should work towards a higher
age level such as 14 or 16. The UN Committee (2007, para 33) preferred a higher age
level because it ‘contributes to a juvenile justice system which, in accordance with
article 40(3)(b) of CRC, deals with children in conflict with the law without resorting
to judicial proceedings’.
Twelve years later, the UN Committee revised its recommendation in line with
findings from developmental psychology and neuroscientific research. In General
Comment No 24 (UN Committee, 2019, para 22), it encouraged state parties ‘to take
note of recent scientific findings, and to increase their minimum age accordingly, to at
least 14 years of age’. Furthermore, in light of the fact that ‘developmental and neuro-
science evidence indicates that adolescent brains continue to mature even beyond the
teenage years, affecting certain kinds of decision-making’ it commended states that
have a higher age level of 15 or 16.
The question is then, if the MACR is raised in Australia, will it be raised to 12 or
higher? Following the November 2021 Meeting of Attorneys-General (2021, p. 4), it
was announced that the State Attorneys General ‘supported development of a proposal
to increase the minimum age of criminal responsibility from 10 to 12, including with
regard to any carve outs, timing and discussion of implementation requirements’.
130 T. CROFTS

This is the age level contained in the current bill before the NT Parliament and is the age
recommended in in the Atkinson Report for Queensland (2018, p. 106) and the Queens-
land Community Support and Services Committee (2022, p. 18, Recommendation 3).
This age also represents the first step in the ACT’s plans to gradually raise the MACR
to 14.
Raising the MACR to 12 would mean that the age level in Australia would be in line
with some common-law countries but it would still be out of line with the minimum level
that the UN Committee now finds acceptable. Furthermore, ‘carving out’ or making
exceptions to the MACR for certain offences would also be out of line with the rec-
ommendations of the UN Committee. According to this approach, the MACR would
be raised but a lower MACR would apply for serious offences. This is the approach
taken, for example, in Ireland, where the MACR is now 12 but this age level is
reduced to 10 for charges of murder, manslaughter or rape.6 This approach appears
grounded in the stubborn view that serious wrongdoing must be dealt with inside the
criminal justice system, regardless of evidence about children’s development or evidence
about the negative impacts of early involvement in the criminal justice system. The UN
Committee (2019: para 25) strongly recommends against such an approach, which it
notes is ‘usually a respon[se] … to public pressure and [is] … not based on a rational
understanding of children’s development’.
There is now hope that the MACR will be raised, at least in some parts of Australia, to
14 without any ‘carve outs’ or exceptions. This is the age adopted by WA Labor (Steger,
2021) and it is the age which the ACT is planning to adopt in two years’ time (Bladen,
2022). It is the age that many campaigners in Australia are recommending and is the
age level that was proposed in the recent Commonwealth, NSW and Queensland
private members’ bills, as well as the current bill before the South Australian Parliament.
An age level of 14 would be preferable to 12, and if 12 is adopted this should be seen as a
temporary step on the way to a higher MACR, as is the case in the ACT. However, an
even higher MACR of 16 or 18 would be most appropriate because it would better
align with the findings of recent research into children’s brain development. It would
also be in line with the idea contained in the Commentary on Rule 4.1 of the Beijing
Rules, which states that ‘there is a close relationship between the notion of responsibility
for delinquent or criminal behaviour and other social rights and responsibilities (such as
marital status, civil majority, etc.)’. While in Australia, 16 or 17 is the age of majority for
some purposes (armed services, age of consent, driving), 18 is the age at which people can
vote, drink in a pub, smoke and marry without parental consent. Furthermore, all the
research discussed supports the argument that children need protection from the crim-
inal justice system until adulthood.

Other measures if the MACR is raised only to 12 or 14

If the MACR is raised to only 12 or 14 then other methods should be adopted to recog-
nise, as noted by the UN Committee (2019, para 22), that children’s brains are still matur-
ing even beyond teenage years. Given that this development does not take place at a
consistent rate and that ‘[t]here is huge individual variability in the timing and patterning
6
Criminal Justice Act 2006 (Irl), s 52(2). For prosecutions of children under 14 the permission of the DPP is required, s 52(4).
 CURRENT ISSUES IN CRIMINAL JUSTICE 131

of brain development’ (Royal Society, 2011, p. 13), it would be acceptable to retain and
raise the upper age at which the presumption of doli incapax applies to 16 or 18 (see
Crofts, 2018; O’Brien & Fitzgibbon, 2017). Presumptions in law are generally based on
probabilities (Holmes J, Greer v United States (1918, p. 561). Below the age of 12 or
14, it is unlikely that a child will have developed the capacities that underlie criminal
responsibility and so the presumption of incapacity should be conclusive. This approach
is also supported from a policy perspective given the well-established negative impacts
that can flow from early involvement with the criminal justice system. Above this age,
as children continue to mature, some children may develop these capacities while
others do not. As such it is acceptable for the presumption of incapacity to be rebuttable
for older children (those aged 14 up to the age of 18). This would still provide protection
from the criminal justice system and its negative impacts for those older children who
lack the capacity to be deemed criminally responsible.
There is a degree of criticism of the presumption of doli incapax as it currently oper-
ates, largely on the basis that it is confusing, inconsistently applied and does not offer
much protection in practice (ALRC, 1997: para 18.19; Cunneen, 2000, pp. 10-12; Law
Council, 2020, p. 5; Community Support and Services Committee, 2022, p. 19). The
UN Committee (2019, para 26) is also not in favour of such a flexible approach,
because, while ‘there is some support for the idea of individualised assessment of criminal
responsibility, the Committee has observed that this leaves much to the discretion of the
court and results in discriminatory practices’. The UN Committee (2019, para 27) is also
concerned to ensure that such an approach ‘does not result in a retrogressive position
regarding the minimum age of criminal responsibility’. If the presumption were
applied above any increase in the MACR in Australia, this would not represent a retro-
gressive position. Furthermore, if the presumption is taken more seriously, with a better
understanding of what evidence is sufficient to rebut the presumption, leading to a more
consistent approach, then much speaks in favour of such reform (see Crofts, 2018; see
also comments of Community Support and Services Committee, 2022, p. 21).
Many of the problems associated with the current operation of the presumption of
doli incapax stem from problematic practices, such as treating the presumption as a
mere formality that can easily be rebutted simply by evidence of commission of the
act and inferences about children’s understanding (Crofts, 2018). This approach was cri-
ticised in RP v The Queen (2016), where, aside from inferences drawn from the circum-
stances of the offence, the only evidence adduced were reports unrelated to the charges
brought in that case. The plurality of the High Court noted that the prosecution’s
approach was ‘apt to overlook’ the fact that the starting point is the presumption that
children lack sufficient intellectual and moral development to be found doli capax
(2016, p. 657). Fitzgibbon and O’Brien (2019, p. 22) have also found that there is evidence
that it is common practice in Victoria for the presumption to be reversed so that ‘the
onus is more commonly located with the defence, who bear the unofficial burden of pro-
viding a report (at their cost) to prove that the defendant is doli incapax’ (see also Com-
munity Support and Services Committee, 2022, p. 19).
Such a situation could be remedied by placing the presumption on a statutory footing
in all jurisdictions (this was already recommended by the ALRC in 1997, Recommen-
dation 195) and adding further detail along the lines of s 11 of the South African
Child Justice Act 2008. This section states that the prosecution must bring evidence
132 T. CROFTS

beyond reasonable doubt and that the assessment report of a probation officer must be
considered alongside all other evidence, which may also include an evaluation report (s
11(2)). An evaluation of the criminal capacity of the child can be requested by the court,
prosecution or defence. This report, prepared by a suitably qualified person, must include
an assessment of the child’s cognitive, moral, emotional, psychological and social devel-
opment (s 11(3)) (see Pillay, 2019). Most interestingly, s 11(1) requires that the prosecu-
tion is required to bring proof beyond reasonable doubt that the child had the capacity to
appreciate the difference between right and wrong at the time of the commission of the
alleged offence and that the child had the capacity to act in accordance with that appreci-
ation. The latter is an important addition to the presumption of doli incapax and more
accurately reflects what is thought necessary to be deemed criminally responsible.
Another alternative would be to develop a separate defence of developmental imma-
turity for children who lack the capacity to be criminally responsible beyond the age of 12
or 14. McDiarmid (2016, pp. 328–329) argues that a defence based on evidence of devel-
opmental immaturity ‘is indicated because children’s understanding of criminal behav-
iour may be limited in comparison with (or different from) that of their adult
counterparts and/or children may be unable, or impaired in their ability, to exercise
rational control over their behaviour’. McDiarmid’s proposal is based on the Scottish
defence of mental disorder (Criminal Procedure (Scotland) Act 1995, s 51A). It would
apply if, due to developmental immaturity, a person aged less than 18 years was
unable to sufficiently know the full implications of, to understand and/or to appreciate
the nature of the conduct, its criminality, its wrongfulness and/or its consequences;
and/or was severely restricted in their ability to judge whether to carry out the
conduct, exercise rational control over the conduct and/or refrain from commission of
the conduct (2016, p. 340).7 The advantage of this approach is that it makes the basis
for the defence (developmental immaturity) clear and expressly refers to the abilities
that lie at the core of criminal responsibility: the cognitive capacity as well as volitional
capacity (Hart, 1968, p. 218; Lacey, 2001, p. 353).
It could be argued that there is no need for such a defence because existing capacity-
related defences (such as insanity/mental impairment or diminished responsibility/sub-
stantial impairment) can apply where a child lacks capacity due to developmental imma-
turity. However, capacity defences may inadequately address the circumstances of the
child offender (McDiarmid, 2016, pp. 334–336; Wake, Arthur, Crofts & Lambert,
2021, p. 160). This is because they typically rely on proof of some recognised medical
condition, and in the case of diminished responsibility/substantial impairment, they
only apply to one offence (murder). As the English Law Commission (2013, para 9.20)
comments: ‘There is an important difference between a recognised medical condition
and developmental immaturity: youth is not a pathological condition equivalent to a
medical condition’. For this reason, the Commission (2013, para 9.20) has recommended
the introduction of a ‘developmental immaturity’ defence in the form of an additional
limb to the partial diminished responsibility defence.

7
For discussion of a similar defence recognising children’s ‘lack of capacity to freely choose because of [their] … limited
autonomy’, see Elliott (2011). For an alternative defence modelled on s 45 of the Modern Slavery Act 2015 (UK), recog-
nising the situational and innate vulnerabilities of children, see Wake et al., 2021).
 CURRENT ISSUES IN CRIMINAL JUSTICE 133

Recent amendments in some jurisdictions to the defence relating to mental impair-

ment may reduce the concerns that capacity-related defences inadequately capture the
circumstances of children who engage in wrongful conduct. For instance, in NSW the
defence of mental health impairment or cognitive impairment applies where a cognitive
impairment is due to developmental delay that may arise from conditions such as intel-
lectual disability, borderline intellectual functioning, an acquired brain injury, drug- or
alcohol-related brain damage, including foetal alcohol spectrum disorder and autism
spectrum disorder (the Mental Health and Cognitive Impairment Forensic Provisions
Act 2020 (NSW) ss 5 and 28). Nonetheless, the concern remains that there may be chil-
dren who experience developmental immaturity due to social and/or environmental
influences, which would not fall within the Law Commission’s proposed defence
(Fortson, 2011, p. 31; see also Elliott, 2011).

Conclusion
Setting the age of criminal responsibility is a complex and controversial matter,
influenced by a range of issues. A brief examination of the concept of criminal respon-
sibility shows that setting the MACR is not just a normative legal issue of defining the
contours of what it means to be criminally responsible and relying on evidence to deter-
mine the age at which a child is thought to have the required capacities. There is a con-
siderable, and continually emerging, body of research from developmental psychology
and neuroscience which overwhelmingly demonstrates that children lack the capacities
that underlie criminal responsibility. Such research has, until recently, failed to convince
governments to raise the MACR. This is because setting the age of criminal responsibility
is not just a legal question but also the result of socio-political and economic decisions
about how a society wants to deal with children who engage in wrongful conduct.
Until recently, there appears to have been an unshakable conviction in Australia that
there must be the opportunity to deal with children who commit crime within the crim-
inal justice system. However, this approach is both unnecessary and inappropriate. It is
unnecessary, given that research shows that children, especially younger children, do not
offend in great numbers and they generally do not commit serious crimes. Even for the
small numbers who do commit serious crimes or who are repeat offenders, the criminal
justice system is not the most appropriate place to address their wrongdoing. Mounting
evidence is showing that there are few to no benefits from engaging children in the crim-
inal justice system, and indeed, it may actually be counterproductive to do so. Research
confirms that early contact with the criminal justice system can lead to a trajectory in that
system and can hinder children from developing into autonomous adults.
The evidence that the criminal justice system can have negative impacts on children’s
futures and exacerbate problems they may face becomes even more compelling when
considered in the light of research showing the characteristics of children typically
involved in that system. They tend to be children experiencing complex health, mental
health and situational challenges. Many have undiagnosed neurodevelopmental dis-
orders or disabilities, which may coincide with disengagement from education,
conduct disorder and experiences of social and family problems (neglect, abuse, sub-
stance misuse, family violence, incarcerated parents, homelessness etc). There is also a
clear connection between those children who come into contact with child protection
134 T. CROFTS

services and the criminal justice system. And, alarmingly, a significantly higher pro-
portion of these children are Indigenous. These children need help and support so
that they can develop into fully autonomous adults. Raising the MACR will prevent chil-
dren from being drawn into an environment which is likely to exacerbate the issues and
challenges they face and hinder their development.
There is, therefore, much that speaks in favour of raising the MACR, and there is now
a growing momentum towards change in Australia. While a national uniform approach
would be preferable, state and territory governments should be encouraged to act inde-
pendently and raise their MACR to at least 14. If the MACR is only raised to 12, this
should be seen as a temporary step on the road to a higher MACR. This could lead to
an inconsistent approach across Australia. However, such a move would put pressure
on other governments to act to remedy an unfavourable situation, such as existed pre-
2000, where a child may be subject to prosecution in one jurisdiction but not another
for the same behaviour. Raising the MACR to 14 would still leave older children, who
may lack the capacity to be criminally responsible and experience complex needs,
liable to be drawn into the criminal justice system. If it is currently not politically feasible
to raise the MACR higher than 14, then state and territory governments should consider
either raising the age at which the present presumption of doli incapax (or its statutory
equivalents) applies or introducing a new defence. A new defence could take several
forms, but whatever form it takes, it should recognise that an assignment of criminal
responsibility requires cognitive as well as volitional capacities. Raising the MACR and
providing protections for older children would provide the opportunity to consider
alternative responses to wrongdoing by children which do not rely on the machinery
of the criminal justice system, it would help Australia comply with its international obli-
gations, it may go some way to reducing the overrepresentation of Indigenous children in
the criminal justice system, and it would set an example to other common-law jurisdic-
tions. The time is right to act now!

Disclosure statement
No potential conflict of interest was reported by the author(s).

ORCID
Thomas Crofts http://orcid.org/0000-0002-4311-2665

Cases
Greer v United States, 245 US 559, 38 S. Ct. 209 (1918), Holmes J.
Roper v Simmons, 543 US 551 (2005)
RP v The Queen (2016) 259 CLR 641

Leglislation
Child Justice Act 2008 (South Africa)
 CURRENT ISSUES IN CRIMINAL JUSTICE 135

Children (Criminal Proceedings) Amendment (Age of Criminal Responsibility) Bill 2021

(NSW)
Commonwealth of Australia Constitution Act 1900 (Cwth)
Crimes Legislation Amendment (Age of Criminal Responsibility) Bill 2019 (Cwth)
Criminal Code Amendment Act 1976 (Qld)
Criminal Code Amendment (Age of Criminal Responsibility) Bill 2022 (NT)
Criminal Justice Act 2006 (Irl)
Criminal Law Amendment Act 1997 (Qld)
Criminal Law (Raising the Age of Responsibility) Amendment Bill 2021 (Qld)
Criminal Procedure (Scotland) Act 1995
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Modern Slavery Act 2015 (UK)
Young Offenders (Age of Criminal Responsibility) Amendment Bill 2022 (SA)

References
Amnesty International. (2018). The sky is the limit: Keeping children out of prison by raising the
age of criminal responsibility. <https://www.amnesty.org.au/wp-content/uploads/2018/09/The-
Sky-is-the-Limit-FINAL-1.pdf>.
Arthur, R. (2016). Exploring childhood, criminal responsibility and the evolving capacities of the
child. Northern Ireland Legal Quarterly, 67(3), 269–282.
Atkinson, B. (2018). Report on youth justice, version 2, youth justice taskforce department of child
safety, youth and women, queensland government.
Australian Bureau of Statstics. (2022). Recorded crime – offenders. <https://www.abs.gov.au/
statistics/people/crime-and-justice/recorded-crime-offenders/latest-release#data-download>.
Australian Capital Territory Government. (2021). Your Say, raising the age (November 2021).
<https://hdp-au-prod-app-act-yoursay-files.s3.ap-southeast-2.amazonaws.com/2916/3589/
7082/Report_-_MACR_Discussion_Paper_-_Listening_Report.pdf>.
Australian Capital Territory Human Rights Commission. (2020). Submission to council of attor-
neys-general review of age of criminal responsibility (28 February 2020). <https://hrc.act.gov.
au/wp-content/uploads/2020/02/20200228-Council-of-Attorneys-General-%E2%80%93-Age-
of-Criminal-Responsibility-Working-Group-review-ACT-Human-Rights-Commission-ACTH
RC-submission.pdf>.
Australian Human Rights Commission. (2021). The minimum age of criminal responsibility.
<https://humanrights.gov.au/sites/default/files/2020-10/australias_minimum_age_of_criminal
_responsibility_-_australias_third_upr_2021.pdf>.
Australian Institute of Health and Welfare. (2021). Youth justice in Australia 2019-20: Data.
<https://www.aihw.gov.au/reports/youth-justice/youth-justice-in-australia-2019-20/data>.
Australian Law Reform Commission. (1997). Seen and heard: Priority for children in the legal
process (ALCRC Report No. 84).
Australian Medical Association. (2019). AMA calls for age of criminal responsibility to be raised to
14 years of age (25 March 2019). <https://www.ama.com.au/media/ama-calls-age-criminal-
responsibility-be-raised-14-years-age>.
Baldry, E., Briggs, D., Goldson, B., & Russell, S. (2018). “Cruel and unusual punishment”: An inter-
jurisdictional study of the criminalisation of young people with complex support needs. Journal
of Youth Studies, 21(5), 636–652.
Bateman, T. (2014). “Catching them young” – some reflections on the meaning of the age of crim-
inal responsibility in England and Wales. Community Safety, 13(3), 133–142.
Benthin, A., Slovic, P., & Severson, H. (1993). A psychometric study of adolescent risk perception.
Journal of Adolescence, 16(2), 153–168.
136 T. CROFTS

Berkman, M. (2022). Dissenting report - member for Maiwar, criminal law (raising the age of
responsibility) Amendment Bill 2021 (14 March 2022).
Bernberg, J., & Krohn, M. (2003). Labeling, life chances and adult crime: The direct and indirect
effects of official intervention in adolescence on crime in early adulthood. Criminology; An inter-
disciplinary Journal, 41(4), 1287–1318.
Bladen, L. (2022). ‘ACT government agrees to raise the age of criminal responsibility to age of 14’
Canberra times (21 September 2022).
Cauffman, E., & Steinberg, L. (2000). (Im)maturity of judgment in adolescence: Why adolescents
may be less culpable than adults. Behavioral Sciences & the Law, 18(6), 741–760.
Centre for Social Justice. (2012). Rules of engagement: Changing the heart of youth justice
<https://www.centreforsocialjustice.org.uk/wp-content/uploads/2012/01/CSJ_Youth_Justice_
Full_Report.pdf >.
Community Support and Services Committee. (2022). Criminal law (raising the age of responsi-
bility) Amendment Bill 2021, Report No. 16, 57th Parliament (Qld).
Council of Attorneys-General. (2020). Communique. <https://www.ag.gov.au/sites/default/files/
2020-07/Council%20of%20Attorneys-General%20communiqu%C3%A9%20%E2%80%93%20J
uly%202020.pdf>.
Council of Attorneys-General. (Undated). Age of criminal ]responsibility working group terms of
reference. <https://www.department.justice.wa.gov.au/_files/TOR-age-criminal-responsibility.pdf>.
Crofts, T. (2016). The common law influence over the age of criminal responsibility – Australia.
Northern Ireland Legal Quarterly, 67(3), 283–300.
Crofts, T. (2018). Prosecuting child offenders: Factors relevant to rebutting the presumption of
doli incapax. Sydney Law Review, 40(3), 339–365.
Crofts, T. (2019). Will Australia raise the minimum age of criminal responsibility? Criminal Law
Journal, 43(1), 26–40.
Crofts, T., Delmage, E., & Janes, L. (2022). Deterring children from crime through sentencing: Can
It Be justified? Youth Justice, DOI: 10.1177/14732254221104896
Cunneen, C. (2020). Arguments for raising the minimum Age of criminal responsibility, research
report, comparative youth penalty project research report, jumbunna institute for indigenous edu-
cation and research. Sydney: University of Technology.
Delmage, E. (2013). The minimum Age of criminal responsibility: A medico-legal perspective.
Youth Justice, 13(2), 102–110.
Drabsch, T. (2022). Age of criminal responsibility, NSW parliamentary research service, March
2022, e-brief Issue 1/2022.
Elliott, C. (2011). Criminal responsibility and children: A new defence required to acknowledge
the absence of capacity and choice. Criminal Law Journal, 75(4), 289–308.
Fionda, J. (2001). Youth and justice. In J. Fionda (Ed.), Legal concepts of childhood, hart (pp. 77–
97). Oxford: Hart Publishing.
Fitzgibbon, K., & O’Brien, W. (2019). A child’s capacity to commit crime: Examining the operation
of doli incapax in Victoria (Australia). International Journal for Crime, Justice and Social
Democracy, 8(1), 18–33.
Fortson, R. (2011). The modern partial defence of diminished responsibility. In A. Reed, & M.
Bohlander (Eds.), Loss of control and diminished responsibility: Domestic, comparative and inter-
national perspectives (pp. 21–38). London: Routledge.
Furby, L., & Beyth-Marom, R. (1992). Risk taking in adolescence: A decision-making perspective.
Developmental review, 12(1), 1–44.
Gardner, M., & Steinberg, L. (2005). Peer influence on risk taking, risk preference, and risky
decision making in adolescence and adulthood: An experimental study. Developmental
Psychology, 41(4), 625–635.
Goldson, B. (2013). Unsafe, unjust and harmful to wider society: Grounds for raising the age of
criminal responsibility in England and Wales. Youth Justice, 13(2), 111–130.
Hale, M. (1736). The history of the pleas of the crown, vol I. London: E. and R. Nutt, and R. Gosling.
Hart, H. L. A. (1968). Punishment and responsibility. Oxford: Oxford University Press.
 CURRENT ISSUES IN CRIMINAL JUSTICE 137

Hollingsworth, K. (2013). ‘Theorising children’s rights in youth justice: The significance of auton-
omy and foundational rights’. Modern Law Review, 76(6), 1046–1069.
Jaensch, R. (2022). ‘Raising the minimum age of detention’, minister for education, children and
youth, media release (8 June 2022).
Lacey, N. (2001). In search of the responsible subject: History, philosophy and criminal Law
theory. Modern Law Review, 64, 350–371.
Lacey, N. (2016). In search of criminal responsibility: Ideas, interests, and institutions. Oxford:
Oxford University Press.
Law Commission. (2013). Criminal liability: insanity and automatism, law com. Discussion paper.
Law Council of Australia. (2020). Council of attorneys general – age of criminal responsibility
working group review age of criminal responsibility working group (2 March 2020). <https://
www.lawcouncil.asn.au/publicassets/c74ddce5-375c-ea11-9404-005056be13b5/3772%20-%20C
AG%20Review%20of%20age%20of%20criminal%20responsibility.pdf>.
Law Council of Australia. (2021). Consideration of raising minimum age of criminal responsibility
doesn’t go far enough, Media Release (16 November 2021). <https://www.lawcouncil.asn.au/
media/media-releases/consideration-of-raising-minimum-age-of-criminal-responsibility-does
n-t-go-far-enough>.
McAra, L., & McVie, S. (2007). Youth justice? The impact of system contact on patterns of desis-
tance from offending. European Journal of Criminology, 4(3), 315–345.
McArthur, M., Suomi, A., & Kendall, B. (2021). Review of the service system and implementation
requirements for raising the minimum age of criminal responsibility in the Australian Capital
Territory: Final Report.
McDiarmid, C. (2016). After the age of criminal responsibility: A defence for children who offend.
Northern Ireland Legal Quarterly, 67(3), 327–341.
McFarlane, K. (2018). Care-Criminalisation: The involvement of children in out-of-home care in
the New South Wales criminal justice system. Australian & New Zealand Journal of
Criminology, 51(3), 412–433.
Meeting of Attorneys-General. (2021). Communique (12 November 2021). <https://www.ag.gov.
au/about-us/publications/meeting-attorneys-general-mag-communiques>.
National Legal Aid. (2020). Council of attorneys-general – age of criminal responsibility working group
review, Submission from National Legal Aid (28 February 2020) <https://www.legalaid.nsw.gov.au/__
data/assets/pdf_file/0009/39267/NLA-sub-CAG-age-of-criminal-responsibility-28-02-20.pdf>.
Northern Territory Government. (2018). Safer communities: response to the 227 recommen-
dations of the royal commission into the protection and detention of children in the northern
territory (1 March 2018). <https://rmo.nt.gov.au/updates/safer-communities-response-to-the-
227-recommendations-of-the-royal-commission-into-the-protection-and-detention-of-childre
n-in-the-northern-territory>.
Nurmi, J. E. (1991). How do adolescents see their future? A review of the development of future
orientation and planning. Developmental Review, 11(1), 1–59.
O’Brien, A. (2021). ‘A huge missed opportunity’: Australia has resisted UN calls to raise the age of
criminal responsibility’, SBS News (9 July 2021). <https://www.sbs.com.au/news/article/a-huge-
missed-opportunity-australia-has-resisted-un-calls-to-raise-the-age-of-criminal-responsibility/
4ydfgmvv6>.
O’Brien, W., & Fitzgibbon, K. (2017). The minimum Age of criminal responsibility in Victoria
(Australia): examining stakeholders’ views and the need for principled reform. Youth Justice,
17(2), 134–152.
Pillay, A. (2019). The minimum age of criminal responsibility, international variation, and the dual
systems model in neurodevelopment. Journal of Child & Adolescent Mental Health, 31(3), 224–234.
Queensland Family & Child Commission. (2017). Queensland Government, the age of criminal
responsibility in Queensland #RaiseTheAge (undated). <https://www.raisetheage.org.au/
organisations>.
Royal Commission into the Protection and Detention of Children in the Northern Territory.
(2017). Final Report.
138 T. CROFTS

Royal Society. (2011). Neuroscience and the law. Brain waves module 4. <https://royalsociety.
org/-/media/Royal_Society_Content/policy/projects/brain-waves/Brain-Waves-4.pdf>.
Schofield, G., Ward, E., & Biggart, L. (2012). Looking after children and offending: reducing risk
and promoting resilience, centre for research on the child and family, UEA and the adolescent
and children’s trust.
Sentencing Advisory Council Victoria. (2021). Sentencing children and young people in victoria.
<http://www.sentencingcouncil.vic.gov.au/sites/default/files/publication-documents/Sentencin
g%20Children%20and%20Young%20People%20in%20Victoria.pdf>.
Shoebridge, D. (2021). Children (criminal proceedings) Amendment (age of criminal responsibil-
ity) Bill 2021, second reading speech, NSW, legislative council, hansard (11 November 2021),
6528-31.
Speakman, M. (2022). NSW legislative council, transcript - PC5 - attorney general (22 August
2022). <https://www.parliament.nsw.gov.au/lcdocs/transcripts/2970/Transcript%20-%20PC5%
20-%20Attorney%20General%20-%2022%20August%202022%20-%20CORRECTED.pdf>.
Steger, S. (2021). ‘WA labor passes motion to raise age of criminal responsibility to 14 at State con-
ference, The West Australian (2 October 2021).
Steinberg, L., & Monahan, K. (2007). Age differences in resistance to peer influence.
Developmental Psychology, 43(6), 1531–1543.
Tadros, V. (2005). Criminal responsibility. Oxford: Oxford University Press.
United Nations. (1985). Standard minimum rules for the administration of juvenile justice (UN
Doc A/RES/40/33).
United Nations Committee on the Rights of the Child. (1997). Concluding observations of the
committee on the rights of the child: Australia (UN Doc CRC/C/15/Add.79).
United Nations Committee on the Rights of the Child. (2005). Concluding observations: Australia
(UN Doc CRC/C/15/Add.268).
United Nations Committee on the Rights of the Child. (2007). General comment No 10 (UN Doc
CRC/C/GC/10).
United Nations Committee on the Rights of the Child. (2012). Concluding observations: Australia
(UN Doc CRC/C/AUS/CO/4).
United Nations Committee on the Rights of the Child. (2019). General comment No 24 (UN Doc
CRC/C/GC/24).
UNSW Centre for Crime, Law and Justice. (2021). Replacing the youth justice system for children
aged 10 to 13 years in NSW: A ‘best interests’ response (September 2021).
Wake, N., Arthur, R., Crofts, T., & Lambert, S. (2021). Legislative approaches to recognising the
vulnerability of young people and preventing their criminalisation. Public Law, 145–162.
Weatherburn, D., McGrath, A., & Bartels, L. (2012). Three dogmas of juvenile justice. UNSW Law
Journal, 35(3), 779–809.
Williams, G. (1954). The criminal responsibility of children. Criminal Law Review, 493–500.