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Children aged 10 and 11 will not be held criminally responsible for their actions in Victoria by the end of next year.
But the Andrews government will wait until 2027 to raise the age of responsibility to 14 – as demanded by Indigenous, legal and medical groups. The second stage of reforms will include exclusions for children accused of more serious crimes, yet to be determined.
Victorian Premier Daniel Andrews and Attorney-General Jaclyn Symes.Credit: Paul Jeffers
Attorney-General Jaclyn Symes said on Wednesday the government had decided against raising the age of criminal responsibility to 14 immediately to design and implement a safety net for at-risk 12 and 13-year-olds.
“I am very concerned that if you raise it too quickly, you’re going to have unintended consequences,” she said. “You’re going to have kids falling through the gap, and you’re going to have a waiting list of kids stepping into custody at 14.”
Police Association Victoria secretary Wayne Gatt said raising the age needed to balance the interests of vulnerable young people with maintaining community safety.
He said crime data showed the age of 12 was “a critical turning point in the debate”, with the severity of criminal offending spiking between then and age 14 for high-harm offences and crimes against people.
“We believe that if the age of criminal responsibility is raised from 12 to 14 in Victoria, the most heinous of crimes including murder and terrorism offences still warrant special consideration,” he said.
“Key to our concerns is the need to ensure that adequate measures are implemented well in advance of proposed reforms to ensure that the government’s intent in driving this legislative change, is met.
“This will only be achieved through adequate funding, resourcing and the practical implementation of social and support resources to match the needs of young people caught up in criminal offending, and the police who will be called upon to respond to the incidents they are involved in.”
Symes said the time frame to raise the age needed to be realistic.
“If we can do it earlier than [2027], that would be great. I want to be realistic about this,” she said.
“You raise the age to 12 next year, we want to make sure we’re testing the systems, we want to make sure that the safety net is there before we risk dissolving the justice system safety net.”
Legislation for the first stage of reform will be introduced in the Victorian parliament later this year. It will also overhaul and strengthen doli incapax – the legal construct that children under the age of criminal responsibility were incapable of forming criminal intent – following the work of an independent review panel.
Currently, if a child is aged over 10 years but under 14, there is a common law presumption of doli incapax. But lawyers say it is not functioning as it should.
There are no 10 and 11-year-olds currently in custody in Victoria. Of the 11 children aged 13 or 14 who are in custody, all are believed to be on remand and none of them are Indigenous. Aboriginal people are disproportionately overrepresented in the criminal justice system.
Police and the opposition have raised concerns the reform could lead to a spike in crime.
Nerita Waight, chief executive of the Victorian Aboriginal Legal Service, said Aboriginal communities had been fighting for the age of criminal responsibility to be raised to 14 for years and there was no need to delay any longer.
“There is no reason that the government cannot fully implement this reform before the next election. The government has been working on this reform for almost a decade through the federal process, and many inquiries and reports have provided a clear plan for implementation,” Waight said.
Symes made the announcement on Wednesday, ahead of a meeting of the country’s attorneys-general on Friday.
The Standing Council of Attorneys-General started reviewing the imprisonment of children in late 2018 in response to concerns Australia was not in line with the rest of the world, where the most common age of criminal responsibility is 14.
The Northern Territory passed legislation last year to lift the minimum age to 12, while the ACT is preparing to introduce laws into parliament to raise the age to 12, and then to 14 in two years.
Symes said Victoria’s preference was for national consistency, but acknowledged all states would be on different timelines.
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