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Lead Author: Emily McDonald Supporting Authors: Chloe Ridgway, Devini Raj Kumar, Kaylah Chorlton, Mira Healey, and Subi KC
Publish date: 28/2/2025
Problem Identification:
In NSW, children as young as 10 can be held ‘criminally responsible’.
Section 5 of the Children (Criminal Proceedings) Act 1987 (NSW) states that children may be held criminally responsible if they are at least 10 years old at the time of the offence.
This means that children as young as 10 in NSW can face the criminal justice system, including being arrested, charged, held alone in police cells and locked in detention. This has raised concerns regarding their developmental needs and the opportunity for rehabilitation. Further, it has been highlighted that this can expose them to environments that can exacerbate trauma whilst not addressing the root causes of their behaviour. The low age of criminal responsibility has been reported to disproportionately impact First Nations children and other at-risk children.
Context:
The age of criminal responsibility refers to the age at which a child is considered by law to have understood that their actions were wrong and can face criminal charges.
In 2023, 2,144 NSW children aged 10-13 had formal contact with police. Of these, 171 children were held in detention, with the majority being on remand. Each year, First Nations children represent 60% of the 10-13 year-olds in custody.
In NSW, the cost of keeping a child in custody is approximately $3,000 per day, totalling around $1 million annually per child.
Medical science suggests that the current laws on childhood capacity may not align with research that indicates that children’s brains are still maturing, which affects their ability to understand the consequences and severity of their actions. Furthermore, experiencing emotional harm at this formative stage can have lasting negative effects, especially for children with developmental delays, disabilities, or complex trauma.
Incarcerating children is known to increase the risk of reoffending with 94% of children imprisoned between the ages of 10 and 12 receiving another prison sentence before adulthood. This is emphasised by two Australian Productivity Commissioners who shared that ‘locking up more children actually increases youth crime’.
As such, ‘Raise The Age NSW’, a coalition of over 130 Aboriginal and Torres Strait Islander organisations, and legal, medical, and human rights groups/experts, have called for NSW to raise the age of criminal responsibility to 14. The national #RaiseTheAge campaign stated: ‘These laws are harming children at a critical time in their lives.’ Further, Amnesty International shared that the current approach ‘does not prioritise ‘safety’ or ‘justice’, rather it risks the wellbeing and future of young children.’
There is domestic and international precedent for this reform. The ACT and TAS have outlined intentions to raise the age for criminal responsibility to 14 by 2025 and 2029, respectively. Further, Korea, Italy, Germany, Rwanda, Argentina, China, Laos, and many other countries have a minimum age of criminal responsibility of at least 14.
Solution Identification:
Amend Section 5 of the Children (Criminal Proceedings) Act 1987 (NSW) to omit the term ‘10’ and substitute it with ‘14’ to raise the minimum age of criminal responsibility.
This could ensure that children under 14 are not subject to criminal prosecution, reducing the harmful impacts of early justice system involvement and potentially lowering reoffending rates.
Advice:
NSW’s Corrective Services Minister should amend Section 5 of the Children (Criminal Proceedings) Act 1987 (NSW), to omit the term ‘10’ and substitute it with ‘14’ to raise the minimum age of criminal responsibility, at the next opportunity.
Public Support:
130+ organisations via Raise the Age NSW
126+ organisations via #RaiseTheAge
Where to go to learn more:
Raise the Age Campaigns
International law regarding the age of criminal responsibility as defined by the United Nations here.
Children (Criminal Proceedings) Act 1987 (NSW) - Read it here
Raising the age of criminal responsibility: Advocates perspectives and an urgent call for action - read the article here
Human Perspective:
At just 10 years old, Mia didn't fully understand the weight of her actions. She was caught shoplifting with a group of friends, an impulsive decision driven by peer pressure. However, under the law in NSW, Mia was considered old enough to be held accountable. The police arrived quickly, and her parents were shocked when they were told Mia could face charges. In NSW, the minimum age of criminal responsibility is 10, a reality that stunned Mia's family. They struggled to comprehend how a young child could be seen as a criminal. As Mia stood in front of the magistrate, she barely grasped the seriousness of the situation.
Conflict of interest/acknowledgment statement:
N/a.
Support
If your organisation would like to add your support to this paper, or suggest amendments, please email Info@foreaustralia.com.
Reference list:
126 organisations call on Attorneys-General to #RaiseTheAge to 14. (n.d.). #RaiseTheAge. Retrieved January 24, 2025. https://raisetheage.org.au/news-stories/126-organisations-call-on-attorneys-general-to-raisetheage-to-14
About the campaign. (n.d.). #RaiseTheAge. Retrieved January 2, 2025. https://raisetheage.org.au/campaign
A better way for children and communities. (2024). #RaiseTheAgeNSW. Retrieved January 24, 2025. https://content.raisetheagensw.org.au/wp-content/uploads/2024/11/A-Better-Way-Raise-the-Age-NSW-Briefing-FINAL-.pdf?_gl=1
Australian Institute of Health and Welfare. (2021, December 14). Youth Detention Population in Australia 2021. Australian Government. Retrieved January 24, 2025. https://www.aihw.gov.au/reports/youth-justice/youth-detention-population-in-australia-2021/contents/summary
Criminalising young children does not prevent crime or make communities safer. While this is often misunderstood, the evidence is clear. (n.d.). #RaiseTheAgeNSW. Retrieved January 2, 2025. https://raisetheagensw.org.au/the-evidence
Department for Education, Children and Young People. (2023). Youth Justice Blueprint 2024-2034: Keeping children and young people out of the youth justice system. Tasmanian Government. Retrieved January 2, 2025. https://publicdocumentcentre.education.tas.gov.au/library/Shared%20Documents/Youth-Justice-Blueprint.pdf
Freeman, K., & Donnelly, N. (2024). The involvement of young people aged 10 to 13 years in the NSW criminal justice system. NSW Bureau of Crime Statistics and Research. Retrieved January 24, 2025. https://bocsar.nsw.gov.au/documents/publications/bb/bb151-200/bb171-report-involvement-of-young-people-nsw.pdf
Mercurio, E., García-López, E., Morales-Quintero, L., Llamas, N., Marinaro, J., & Muñoz, J. (2020). Adolescent brain development and progressive legal responsibility in the Latin American context. Frontiers in Psychology, 11(627). Retrieved January 24, 2025. https://doi.org/10.3389/fpsyg.2020.00627
Ransley, J., McGee, T., Leilani, R., Thompson, C., & Williams, C. (2024). A review of arguments for raising the age of criminal responsibility. Current Issues in Criminal Justice, 1–17. Retrieved January 24, 2025. https://doi.org/10.1080/10345329.2024.2353489
Why we need to raise the minimum age of criminal responsibility. (2022, January 25). Amnesty International Australia. Retrieved January 24, 2025. https://www.amnesty.org.au/why-we-need-to-raise-the-minimum-age-of-criminal-responsibility/
Woodley, M. (2023). newsGP - Pressure builds on governments to “raise the age”. NewsGP. Retrieved January 24, 2025. https://www1.racgp.org.au/newsgp/professional/pressure-builds-on-governments-to-raise-the-age
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