The age of criminal responsibility is the minimum age that a person can be arrested, summonsed, charged with, and found guilty of a criminal offence. Up until 1 August 2023, the age of criminal responsibility was 10 in all Australian states and territories. On 1 August 2023, the Northern Territory became the first Australian jurisdiction to raise the age of criminal responsibility. The minimum age of criminal responsibility in the Northern Territory is now 12.
Why was the age of criminal responsibility changed?
The NT raised the age of criminal responsibility from 10 to 12 in response to widespread pressure from lawyers and human rights groups for the age to be raised across all of Australia. The ‘Raise the Age’ campaign first started to gain momentum in 2016, when media attention was focussed on human rights abuses in the Don Dale Detention Centre and concerns about the large number of young children in detention became widespread.
Expungement of convictions of children under 12
All Northern Territory criminal convictions against people for offences committed when they were younger than 12 have now been expunged. This means that people who had these convictions recorded against them must now be treated as though they had never been charged, found guilty of, or sentenced for those offences.
The expungement of these convictions means that a person who was convicted of an offence in the NT when they were 10 or 11 can now say under oath that they have never been charged with or convicted of an offence. Their criminal record no longer includes those charges or convictions.
An offence to disclose expunged convictions
It is now a criminal offence to intentionally engage in conduct that results in the disclosure of a charge or conviction that has been expunged if the offender is reckless as to that result. This offence is punishable by a fine of 50 penalty units or imprisonment for up to six months.
What if a child under 12 commits an offence?
Under section 38 of the Criminal Code Act 1983, the age of criminal liability is now 12 in the Northern Territory. When a child younger than the age of criminal responsibility does an act, it is not regarded as an offence, even if it would amount to an offence if committed by an older person.
If a child under 12 commits an act that would be an offence if done by an older person, the situation will be dealt with by parents and teachers. The child may be provided with counselling.
Doli incapax
Although a child who is 12 or 13 can be charged and convicted of an offence in the Northern Territory, there remains a presumption that a child under 14 is not criminally responsible for an act. This presumption is set out in section 38A of the Criminal Code Act and is known as the doli incapax (incapable of evil) rule.
Under the doli incapax rule, a child under 14 is not criminally responsible for an act unless the court is satisfied that they had the capacity to know they should not the act at the time of doing the act. The prosecution must prove that the accused child knew the difference between right and wrong and understood that they ought not to do the act.
Doli incapax is based on the idea that many children under 14 are not mature enough to be held criminally responsible for their acts. Although they may know that something is ‘naughty,’ they are not yet capable of understanding that it is seriously wrong and amounts to a criminal offence.
If a child under 14 is charged with an offence, but the prosecution is unable to convince the court that the child had this capacity, the child will be found not guilty based on ‘immature age.’
If a child over 12 is found to have committed an act and to have had the capacity to understand the nature of their actions, they will be found guilty of the offence and sentenced.
How are juvenile offenders dealt with?
Most offenders under 18 in the NT are dealt with by the Youth Justice Court. However, very serious offences committed by young people are finalised in the Supreme Court. The Youth Justice Court has the power to impose a range of sentences, including fines, community work orders, and terms of youth detention. When it sentences a young person, it must deliver a sentence that has the rehabilitation of the young person into a law-abiding citizen as its primary goal.
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