Fear is the key. With immigration, it’s the fear of being swamped by teeming millions of the desperately unmoored. With youth crime, it is the spectre of the cold-eyed devil child, coming through your window to murder you in your sleep.
The Victorian government has just dogged its promise to raise the minimum age of criminal responsibility in the state from 10 to 14. It has caved in to pressure from the scientists of talkback radio and the social engineers at the Herald Sun, stoking two of the most primal aspects of the general fear people feel about crime — that it is always rising, and that lawless children are out of control.
The minimum age refers to the age below which a child cannot be charged with a crime because the law presumes on an absolute basis that they are incapable of forming criminal intent (that is, they don’t have a sufficient grasp of the difference between right and wrong to be able to consciously decide that they want to commit a crime).
The dividing line is, of course, arbitrary. You might be surprised to learn that, for example, in NSW it’s only been 10 since 1987; before that, children as young as eight could be prosecuted.
Above 10, the common law has long imposed a qualification, called doli incapax, which presumes that children under 14 cannot commit a crime; however, the presumption can be rebutted in any particular case by evidence that the child really did know what they were doing was seriously wrong.
Across Australia, all states have the minimum age at 10, whereas in the ACT and NT it is currently 12. Among advanced nations, these ages are low (no, I don’t count the USA as an advanced civilisation in this context).
The campaign to raise the age to 14 has been gaining traction for some years. So far success has been limited: the ACT legislated in 2023 to increase its age to 12 immediately and to 14 in 2025 (with a reservation that, for some very serious violent crimes, children aged 12 to 13 can still be charged). The Northern Territory also legislated in 2023 to go up to 12 but no further.
Otherwise, Tasmania’s government published its commitment last year to increase the age to 14, but not until 2029. The announcement has since been quietly removed from government websites, so it’s probably dead.
Internationally, countries go in all directions on this issue. The United Nations Committee on the Rights of the Child treats 14 as the minimum acceptable level and has called on Australia to conform. UNICEF holds the same view, while the European Network of Children’s Ombudspersons advocates a progressive increase to ultimately exclude all children (below 18) from the criminal justice system.
The Australian Human Rights Commission reported in 2019 that 14 should be the minimum standard, citing widespread research outcomes in support.
The arguments for not criminalising wrongdoing by children are well-rehearsed and based on solid data. Largely they fall into three categories: the developmental point that children’s brains are still maturing and they lack capacity to properly engage with a system designed to punish adults, so it is inappropriate and pointless to treat them like adults; the fact that criminally punishing children is far more likely to turn them into lifelong criminals than achieve any positive result; and the over-representation of children from disadvantaged backgrounds in juvenile justice — in Australia, with graphic obviousness, particularly Aboriginal and Torres Strait Islander children.
Here’s a simple, incontrovertible fact: across Australia, Indigenous children are 24 times more likely than the average to be in detention.
It’s almost tedious to recite the evidence, however, because there is so much and it’s been known for decades. It provides unqualified, unanswerable support to the cause for lifting the minimum age, but it makes no practical difference.
That is because you can’t beat the fear, and Australia is blessed with an abundance of prophets of fear.
Last month, Queensland LNP leader David Crisafulli announced his party’s youth crime policy for the upcoming state election, with the catchy title “adult crime, adult time”. His policy theory: there is a “generation of repeat untouchables” who need to be stamped out, and the way to do it is to lock them up forever. Literally: in Queensland, the sentence for murder is mandatory life (minimum 20 years without parole), and Crisafulli wants that applied to children who commit murder too, even if they’re as young as 10.
As Queensland’s Human Rights Commissioner pointed out, the majority of children affected will be Indigenous. He warned that such a policy would put the state’s “international reputation as a modern democracy at stake”.
All music to the ears of the master of fear, Peter Dutton. Speaking at the LNP conference, he claimed that “crime, as we know, and as we live every day, it is through the roof.” He fully supports the notion of treating children like adults. Despite this being a state issue, he has vowed to keep the age of criminal responsibility at 10.
“They’re taking photos of elderly women and people who are scared in their homes,” said Dutton, squarely erecting the bogeyman of soulless child criminals to join his collection of mythical grotesques, alongside African crime gangs, Muslim politicians, the entire population of Lebanon and anyone who’s ever been to Gaza.
In this climate of fear, rational evidence-based policy has a hard road. In the meantime, suffer the little children some more.
