The Common Law Influence over the Age of Criminal Responsibility in Australia

Northern Ireland Legal Quarterly, Vol. 67, No. 3, pp. 283-300, 2016

Sydney Law School Research Paper No. 16/99

21 Pages Posted: 11 Nov 2016

See all articles by Thomas Crofts

Thomas Crofts

The University of Sydney Law School

Date Written: November 10, 2016

Abstract

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

Crofts, Thomas, The Common Law Influence over the Age of Criminal Responsibility in Australia (November 10, 2016). Northern Ireland Legal Quarterly, Vol. 67, No. 3, pp. 283-300, 2016; Sydney Law School Research Paper No. 16/99. Available at SSRN: https://ssrn.com/abstract=2867646

Thomas Crofts (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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