Child advocates are at loggerheads with communities pushing to do more about youth crime, as both push the NSW Government in opposite directions to raise, lower, or maintain the age of criminal responsibility. New research could inform the way ahead. 

In NSW, the age of criminal responsibility is 10 years old, however children over 10 and under 14 years have the presumption of ‘doli incapax’, meaning that the child must understand their actions are ‘seriously wrong’ rather than ‘naughty or mischievous’ to be charged. 

This week the Australian Institute of Criminology - in partnership with Monash University - released their research about children aged 10-13 and their experience with the legal system, largely using data from Victoria.

“The research adds significantly to the debate concerning appropriate responses for 10-13-year-old children with offending behaviours, particularly within Victoria, but also with relevance to other Australian jurisdictions,” researcher Dr Susan Baidawi said. 

The research found that across Australia, 18.4 per cent of offenders under 18 were aged 10-13 years. 

Only 2.4 per cent of 10-12-year-olds whose matters proceeded to Children’s Court were met with statutory youth justice supervision in the community or a sentence of detention, with the rest having their matters struck or dismissed, or receiving a court diversion or therapeutic treatment disorder. 

The actions of 10-year-olds, however, were found to be very different to that of older youth. 

“A key finding is that the alleged and proven offending of 10-year-olds is less likely to be violent in nature compared to that of 12- and 13-year-olds, and more often relates to property charges such as property damage or burglary/unlawful entry with intent,” the report said. 

In late 2023, a coalition of First Nations organisations, legal and human rights organisations, peak bodies in the non-government sector and unions joined forces in a call to raise the NSW age of criminal responsibility to 14. 

“Children belong in schools, playgrounds and at home with their families – not in police lock-up and prisons. In NSW and across Australia, the legal system traps Aboriginal children at a far higher rate than non-Indigenous kids,” CEO of the Aboriginal Legal Service (NSW/ACT) Karly Warner said at the time. 

Earlier in the year, Bourke Shire Council had pushed back against the move.

Victoria has committed to raise it to 12 by the end of 2024, and to 14 by the end of 2027. 

“Their process for deciding what an alternative service model should look like, as well as that of other jurisdictions, can lean on these new findings to support an evidence-informed approach,” Dr Baidawi said. 

The research can be found here.