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Amend Section 5 of the Children (Criminal Proceedings) Act 1987 No 55

1. Purpose of Amend Section 5 of the Children

The amendment relating to raising the minimum age of criminal responsibility within Australia would bring about a developmental process in terms of the accommodation of human rights standards and a scientific understanding of children’s psyche within the country’s legal system. While the doctrine of doli incapax was abolished in England and Wales in 1988 and followed by Australia as being part of the Commonwealth, the repercussions followed soon after as a wide number of legal theorists and researchers presented how the lowering of the minimum age could have significant impacts on the children under youth justice supervision.

2. Background & Research of Amend Section 5 of the Children

In terms of the historical reasons behind the abolishment of the principle, several cases played instrumental roles where children below 14 were found to clearly be able to distinguish between the right and the wrong while indulging in acts of criminality. One of the most prominent cases in this regards relates to the matter of “8 R v Secretary of State for the Home Department, ex parte Venables; R v Secretary of State for the Home Department, ex parte Thompson [1997] 3 All ER 97” which went on abolish the doctrine within the Commonwealth (UK Parliament 2020).

While the gravity of the conviction of JV and RT was certainly alarming, the idea of a general reduction in the minimum age was severely criticised by judges, academics and politicians in a likewise manner. The doctrine of doli incapax propagated that children were incapable of evil, thus implying the transfer of the evidential burden on to the prosecution to prove otherwise. The proposed amendment seeks to increase the minimum age of criminal responsibility to 14 as adopted across the large majority of nations around the world. It would reduce the needless criminalisation of children and the limit the plethora of negative implications that unnecessary charges could have on their neuro scientific development over time.

3. Analysis - Stakeholder Position

One of the most important arguments that has long been present towards raisin the minimum age of criminal responsibility for children within the Commonwealth has been the distinct presence of human rights abuses due to the misrepresented criminalisation. The Northern Territory’s Don Dale Detention Centre recently came to the forefront in this regard, whereby a large number of the convicts below the age of 14 were found to be poorly treated (Hickey, 2020). The incarceration of an individual at such a young age can lead to lasting impacts on both the mindset that develops as well as his or her outlook towards the external world. Another major reasons as to why the abolition of the doctrine of doli incapax has been criticised from an Australian perspective has been the large number of Aboriginal and Torres Strait Islander children within detention.

The section o the population is already disadvantaged in terms of social and economic benefits, and any sort of criminalisation at such a young age only complicates the situation further (Dahlstrom, 2020). The key fundamental in this regard is that the adolescent period is arguably the most crucial in terms of human development, and negative experience such as the imposition of criminal liabilities can severely degrade the process of development. The general society and the extended community is also an important stakeholder in this regard, as incarceration in the youth essentially sets up the children for a life of crime and illegality. It is important to note that the major portions of children that are convicted through criminal proceedings are not serious offenders and the impacts of a criminal charge only increase the risk of them jousting with acts of unlawfulness in the long run.

It also adds to the requirements of bringing in correctional interventions that are more severe and restricting by nature. Social marginalisation and isolation are also major problems commonly identified with young children suffering from criminal indictments, and these only add to the development of a criminal mindset within them. The large number of Aboriginal children within Australia that make up the majority of the inmates at detention centres in Queensland have also been subject to a systematic form of racism over hundreds of years. This, along with the lack of adequate supervision, curiosity and boredom as commonly found in children of all ages in all countries, are the key drivers of criminal offences involving children (The Royal Australasian College of Physicians, 2020).

However, the legal system currently in place tends of over emphasise on the one off serious cases as a means to generalise the implications and justify the reduction of the minimum age of criminal responsibility. The government and the polity are also important stakeholders in this argument, especially when viewed at from an international perspective. 14 is the most commonly adopted minimum age of criminal responsibility within the world, with a large number of developed counties such as Sweden and Portugal setting it to 15 and 6 respectively. Luxembourg, one of the most prosperous countries within the European Union, has set the minimum age of criminal responsibility at the age of 18.

Naturally, upholding the minimum age at 10 within Australia certainly harms the credibility of the legal system and the minds behind the legal system (The Guardian for Children and Young People in Care,2019). Furthermore, statements from governmental representatives have only added fuel to the fire behind the criticism of reducing the age of criminal responsibility. Christian Porter, the Attorney General for New South Wales has often stated his lack of enthusiasm regarding proposed reforms to increase the age, citing how it works relatively well as of now and allows flexibility where the prosecution of children is appropriate (Hickey, 2020).

Statements such as these only add to the international scepticism regarding the credibility of minds behind the Australian legal system, and should certainly be refrained from. While serious offences involving children certainly require legal intervention, the reliance on criminal proceedings is certainly not the way forward. Alternative mechanisms such as correctional facilities and learning and behaviour treatments have strongly been recommended over the world, and must be factored in by the Australian government in this regard.

4. Critical Observations of Amend Section 5 of the Children

While the debate regarding how a raise in the minimum age for criminal responsibility has long been ensuing, the governments within Australia have predominantly overlooked the arguments while maintaining that the law is flexible and allows for a case by case analysis of incidents involving child offenders. Criminal damage has been the most common form of offense engaged in by children below the age of 14 and 18 within Australia, and it is important that the government recognises this to amend the laws and bring about reforms. One off cases and individual incidents have certainly taken place, where the juvenile offenders were found to be able to distinguish between the right and the wrong.

However, this certainly cannot be a reason to allow for a generalised implementation of the abolition of the doctrine of doli incapax, especially when considering how it would be unreasonable to expect every child to comprise o the mental capacity and understanding similar to that of an adult (Gibson, 2019). Observations put forward by the legal system within Australia including notable heads have often been along the lines of how the law is flexible and allows for the innocent to not be treated unfairly. However, the process of the trail itself can be detrimental towards the developmental of the child, let alone the upholding of the indictment of the charge.

5. Conclusion on Amend Section 5 of the Children

In conclusion, the key arguments that firmly establish why the reform is necessary predominantly relate to the negative implications that criminalization during adolescence can have on the child. Ranging from the misrepresentation an socio economic complications for the Aboriginal children within Australia to endangerment of public safety by pushing young offenders towards a life of crime, it is important that the Government of Australia factors in the outcomes prior to putting forward their standpoint. Moreover, lesson ae certainly to be learnt from the international community in the context of how early criminalization for minor offences can substantially curb the neuro psychological development of the child and in turn harm the law and safety of a nation in the long run.

6. Reference List for Amend Section 5 of the Children

Dahlstrom, F 2020, ‘The Minimum Age of Criminal Responsibility (Qld)’, viewed 14 May 2020, < https://www.gotocourt.com.au/criminal-law/qld/age-of-criminal-responsibility/>

Gibson, L. 2019, ‘The Abolition of Doli Incapax and the Alternatives to Raising the Age of Criminal Responsibility’ viewed 14 May 2020, < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3481217>

Hickey, S 2020, ‘Should the age of criminal responsibility in Australia be raised?’ viewed 14 May 2020, <https://www.mondaq.com/australia/crime/882718/should-the-age-of-criminal-responsibility-in-australia-be-raised>

The Guardian for Children and Young People in Care 2019, Doli incapax – an odd word with profound significance for South Australian children, viewed 14 May 2020, < http://www.gcyp.sa.gov.au/doli-incapax-and-odd-word-with-profound-significance-for-south-australian-children/>

The Royal Australasian College of Physicians 2020, Doctors, lawyers, experts unite in call to raise age of criminal responsibility, viewed 14 May 2020, < https://www.racp.edu.au/news-and-events/media-releases/doctors-lawyers-experts-unite-in-call-to-raise-age-of-criminal-responsibility>

UK Parliament 2020, House of Lords - Reg. v. Secretary of State for the Home Department, Ex parte V. and Reg. v. Secretary of State for the Home Department, Ex parte T, viewed 14 May 2020, <https://publications.parliament.uk/pa/ld199798/ldjudgmt/jd970612/vandt01.htm>

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