With the change of time and the evolution of genes, things are not the same as they were before. The enacting of Acts has been in the 19th century mostly when all around the world, people were getting more civilised and adopting the legal structures as a part to regulate their acts. In Australia, to children of the age 10 years, are held to be criminally responsible for any act. They are being imposed upon sanctions and heard in Criminal Courts. However, recent research shows that the brain development of children of that age is not fully grown to understand the predicament of the situation. It is held that under 12 years, the children are not aware of any criminal responsibility whatsoever. This phenomenon does not change until the age of 15 years. Therefore it was the outlook of the United Nations to include the age of 12 years minimum age for such criminal jurisdictions. This is however not followed by any Australian State or Territory.
It so happens to be that in Australia, not even a quarter of children who are contacted by the police officials for any criminal misconduct, gets to appear before the court. This, however, prolongs their criminal records with a high rate of criminal offences done by them. Some have faced neglection and abuse and disbarred from their families. For now, the minimum age of criminal responsibility in Australia is 10 years. This principle is based on a doctrine called doli incapex, which means that children who age 10 but less than 14 years are not capable enough to be criminally prosecuted. While in other countries, this minimum age is different. In New Zealand, it is 10-14 years, but depending upon the severity of the offence, this limit is alterable. In Canada, it is 12 years. In England, it is for 10 years. In the USA it is 6-12, but different states have different limits. In France, it is for 13 years. In Germany, it is 14 years. In Sweden, it is 15 years. In China and Japan, it is 14 years.
Here the crime rate of children between 10 to 11 years of age is not that much. In 2013-2014, this age group constituted even less than 2% of the crimes and below 18 years are in custody (ABS, 2014). In this, girls are minimal to contribute to any offences (AIHW, 2013). Children aged between 10-14 years seem to involve themselves in less number of crimes. If they are it is principal offences like theft, unlawful entry with intention, property damages (AIHW, 2013).
In other states like Victoria, 78% of children aged between 10-12 years were issued youth justice orders in 2010 or were sent to remand. Of these numbers, around 60% of them did not even have their seventh birthday. 25% of youth justices orders in 2010 came from Victoria (Ericson & Vinson, 2010). As per the Australian, Early Development Index shows that areas which are developmentally vulnerable, most of the offenders aged 14 years and under belong to such places only (Bradley, 2003).
Children who are or have become offenders shown traits of drug abuse, disability, mental illness, experience crime and violence, homelessness, child abuse and neglection. It is well connoted that early experience of child abuse and neglection have a disadvantageous effect of brain development of children. This too also leads to the development of oral language (Snow and Powell, 2012).
A very recent case in this year, the name of the case in unknown to protect the privacy of the child, that child was sent to custody at the age of 14. Many of the prosecutors had rebutted the contention of the defendant of doli incapex. They have relied on the statement which the child gave as his confession. Now at the age of 17 years, he still rots in custody. Every year nearly 600 children, aged between 10-13 are waste away in detention in Australia. They are held or found guilty of criminal behaviour like theft or sometimes for serious crimes as well. In lieu of this, many of the doctors, lawyers and child protection advocates had pleaded to raise the bar. Organisations like Law Council of Australia, the Aboriginal Legal Services, legal aid, the Australian Medical Association, the Australian Human Rights Commission and the Law Society of NSW to remove the mark set by doli incapex and the raise the bar of a minimum age of criminal responsibility to 14 years. The Law Society gave reasons for it such as the lop-sided effect of this on Indigenous children of the present age, child development and cognitive impact, and other responses from children (Dale, 2020).
As per the Australian Insitute of Health and Welfare, Aboriginal and Torres Strait Islander children faces detention 20 times more than non-indigenous youth. The Redfern office of the Aboriginal Legal Service, Children’s Criminal Practice State Manager, Keisha Hopgood shows files wherein cases like children who were detained for stealing strawberry milk, joining in a protest with the adults for state's most disadvantaged groups, while another one where a child was commanded to circle the phrases that showed very bad behaviour in a worksheet that is made by the police officials. So in that ‘kicking someone’ was circled and ‘so staying up past the bedtime.’ The United Nations have also condemned the laws of Australia and termed them to be harshest in the world. A case where Bronson Blessington, aged 14 years was an accomplice of a gang. He raped and murdered a young woman of Sydney Janine Balding in 1988. He has now spent more than two-thirds of his life rotting in jail and there is no way out for him as all his appeals are dismissed. The United Nations finds this very barbaric as Australia had breached the treaties that it ratified, inclusive of Convention on the Rights of Child and this act amounted to ‘cruel, inhumane and degrading punishment.’ Therefore it is the view of the legislators that one rare of the rarest cases must not be put as a standard of any legislation (Cuneen, White & Richards, 2015).
The Australian Medical Association also have the opinion to raise the age from 10 to 14 years. Their assessment is based on the human reasoning and development of the brain does not mature before adult age. The test of doli incapex states that the person implicating any harm on another or doing any crime is aware of the wrong and complications that he might be prone too. However, what it does not recognise is that young people are impetuous and easily carried away under the influence of their peers. They do not comprehend before doing any act nor they even take a look in the moral element. They are just so much filled up with youth that they tend to do whatever they are being told.
It is the belief of the organisations not just nationally but internationally as well that the minimum age of children to held liable for any criminal act must be raised from 10 to 14 years. Children are not aware of their proclivities and this is that period where a child’s mind and body is changing rapidly. They are taking their time to understand what they are going through and this is the time where a loving and caring home atmosphere, a friend, a guardian or anyone who could guide them and make them understand what they are going through. If leftover time, they shall not be able to control this changing vibe and a time shall come when this vibe shall only be their driving factor. Many organisations are of the view that instead of investing states money in holding judicial proceedings and sending them to custody, one must spend that money in the development of children (Goldson & Muncie, 2015). They must be told the pros and cons of their actions from a young age itself that they tend to realize after a certain age that what is right and wrong.
Australian Bureau of Statistics. (2014). Prisoners in Australia, 2014, ABS, Canberra. [Online]. Available at: http://www.abs. gov.au/AUSSTATS/abs@.nsf/Latestproducts/4517.0Glossar y12014?opendocument&tabname=Notes&prodno=4517.0&iss ue=2014&num=&view (Accessed on:22/09/2020).
Australian Institute of Health and Welfare. (2013). Young people aged 10–14 in the youth justice system 2011–2012, AIHW, Canberra. [Online] Available at http://www.aihw.gov.au/publicationdetail/?id=60129543944 (Accessed on 22/09/2020)
Ericson, M & Vinson T. (2010). Young People on Remand in Victoria – Balancing Individual and Community Interests, Jesuit Social Services, Richmond. [Online]. Available at: http://www. jss.org.au/files/Docs/policy-and-advocacy/publications/ Young_people_in_remand_in_Victoria_-_Balancing_ individual_and_community_interests.pdf (Accessed on: 22/09/2020).
Bradley, L. (2003). The Age of Criminal Responsibility Revisited. Deakin Law Review, 8 (1), pp. 86-29.
Snow, P. & Powell, M. (2012). Youth (in)justice: Oral language competence in early life and risk for engagement in antisocial behaviour in adolescence, Trends and Issues in Crime and Criminal Justice, Australian Institute of Criminology, Canberra. [Online]. Available at: http://www.aic.gov.au/ media_library/publications/tandi_pdf/tandi435.pdf (Accessed on 22/09/2020)
Dale, A. (2020). How is old enough to be a criminal? [Online] Available at https://lsj.com.au/articles/how-old-is-old-enough-to-be-a-criminal/ (Accessed on 22/09/2020)
Cunneen, C, White, R and Richards, K. (2015). Juvenile Justice: Youth and Crime in Australia, 5th Edn, Oxford University Press, Melbourne.
Goldson, B and Muncie J (eds.) (2015). Youth Crime and Justice. SAGE, London.
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