“In NSW, 10 is the age of criminal responsibility,” Independent Education Union of Australia NSW/ACT Branch Secretary Carol Matthews said.
“That is too young. Support and early intervention are what young people need – not prison.”
Doli incapax is a common law principle that presumes children aged between 10 and 13 cannot be held criminally responsible for their actions.
It can be rebutted if the prosecution proves beyond reasonable doubt the child knew their actions were seriously wrong as opposed to merely naughty.
This means it is rare for young children to be found guilty of a crime – but they are still policed, dragged through courts and remanded in prison.
“Criminal courts and youth prisons can never meet the complex needs of this small group of young children,” Matthews said.
“It is not in the best interests of children, families and the community to imprison primary school students.”
The NSW Bar Association said on Monday that it welcomes the release of the Review of the operation of doli incapax in NSW for children under 14 by Geoffrey Bellew SC and Jeffrey Loy APM.
The review involved substantive consideration of the relevant issues concerning doli incapax and the report makes several recommendations for the NSW Government’s consideration.
The Association said the long-standing presumption of doli incapax is an important safeguard which must be protected in the absence of the age of criminal responsibility being raised to 14 years of age.
Doli incapax, it said, recognises that, at a young age, the brains of children are still developing, and that children lack the maturity required properly to appreciate the significance of their actions.
The union said it understands community concern about youth crime and the devastating impact it can have on victims.
“Raising the age and providing support that addresses the causes of offending behaviour will achieve better outcomes for children and promote community safety,” Matthews said.
“Investing in more services for children instead of exposing them to the criminal justice system is more cost-effective.”
It is why the IEU has joined more than 150 other organisations in supporting the #RaiseTheAge campaign in NSW to raise the minimum age of criminal responsibility from 10 to at least 14 in line with international law.
“Exposing children to the criminal justice system can trap them in a cycle of repeat offending,” Matthews said.
“As teachers and unionists, we call on the NSW government to invest in education and services for children and families to prevent crime.
“We support reforms that divert children away from the criminal justice system and into targeted services and interventions that help them learn to be accountable when they veer off the track or are a danger to themselves or others.”
