Commissioner for Children and Young People
Survey Background
Currently in Tasmania, as in all other Australian jurisdictions, the minimum age of criminal responsibility is set at 10 years. This means that children as young as 10 can be arrested, searched, charged with a criminal offence, remanded in custody, and sentenced to detention.
Children aged 10 years or more, but less than 14 years are presumed not to possess the cognitive skills necessary for full criminal responsibility. This legal presumption is known as ‘doli incapax’, and can only be ‘rebutted’ (overcome), if the prosecution proves, beyond reasonable doubt, that a child in that age-range “had sufficient capacity to know that the act or omission was one which [they] ought not to do or make” (Criminal Code, section 18(2)). However, in practice there is no easy way to test or prove that a child can or cannot understand the wrongfulness of their actions, which has led to creative interpretations of the rule, which some critics view as being prejudicial to the child, and more harmful than protective of their interests.
In 2019, the UN Committee on the Rights of the Child recommended countries raise the minimum age to what is described as an internationally acceptable minimum of at least 14 years. There is now a groundswell of support for raising the minimum age of criminal responsibility in Australia, with Aboriginal and Torres Strait Islander organisations, the Australian and New Zealand Children’s Commissioners and Guardians, and many peak or representative organisations amongst those calling for change.
The Commissioner for Children and Young People (the Commissioner) intends to provide advice to the Tasmanian Government on this issue. To assist to inform that advice, the Commissioner is seeking the views of individuals and organisations with relevant expertise, knowledge, and experience on what raising the minimum age might mean for Tasmania.
The Commissioner may also share responses to the survey questions with the Tasmania Law Reform Institute (TLRI) to inform its socio-legal and doctrinal review of the minimum age. The TLRI’s review will complement and contribute to the work of the Commissioner on this issue.
For additional background information, see:
- The Commissioner’s February 2021 paper, ‘Age of Innocence: Children and Criminal Responsibility A background paper to inform community discussion’.
- The University of Tasmania’s Island of Ideas webinar on this topic which includes a discussion of alternative ways to address children’s problematic behaviour, meet their underlying needs and promote community safety.
- The UN Committee on the Rights of the Child’s General Comment No. 24 (2019) on children’s rights in the child justice system.
The Commissioner’s submission to inform the age of criminal responsibility review being undertaken by the Council of Attorneys-General Working Group.
How to respond to the survey
Responses to the survey are due by 30 April 2021. You do not have to answer every question.
You can also respond to the survey questions by emailing your response to childcomm@childcomm.tas.gov.au or by writing to the Commissioner at GPO Box 708, Hobart TAS 7001. Please remember to say if you are happy for your response to be made publicly available by the Commissioner.
For further information, contact the Commissioner for Children and Young People on 03 6166 1366 or via email to childcomm@childcomm.tas.gov.au.
Survey Closed
The survey is now closed. Thank you for your responses.