The Common Law Influence over the Age of Criminal Responsibility in Australia
Northern Ireland Legal Quarterly, Vol. 67, No. 3, pp. 283-300, 2016
21 Pages Posted: 11 Nov 2016
Date Written: November 10, 2016
This article explores how Australian jurisdictions came to have an approach to the age of criminal responsibility similar to that which existed in England and Wales until 1998. It discusses recent debates in Australia about reforming the minimum age of criminal responsibility and the presumption of doli incapax. This shows that while there has been criticism of the presumption of doli incapax within Australia no jurisdiction has taken the English step of abolishing it. It finds that a greater challenge to the presumption of doli incapax may, however, come from calls for an increase in the minimum age of criminal responsibility to the age of 12. While several common law countries have raised the minimum age level to 12 (as called for by the United Nations Committee on the Rights of the Child) they have also abolished the presumption of doli incapax, thus reducing protection for 12 and 13 year olds. This article argues that unless the minimum age of criminal responsibility is raised to 14 or 16, as preferred by the United Nations Committee, there are good reasons to retain the presumption of doli incapax.
Keywords: Criminal Responsibility, Presumption of Doli Incapax, Criminal Capacity, Children, Juvenile Justice
JEL Classification: K10, K14, K30
Suggested Citation: Suggested Citation