Criminal responsibility of older children: The failings of doli incapax in Australia

Abstract

Criminal law balances community protection from children who commit criminal offences against supporting children to behave appropriately. Existing Australian law applies the rebuttable presumption of doli incapax to children from 10 years of age and then applies full criminal responsibility to children from 14 years of age. Imposing full criminal responsibility on older children is problematic because it does not account for their cognitive development, social and environmental risk factors and maturity. Extending doli incapax to older children is one response to address the challenges of older children's criminal culpability but it does not go far enough to protect children from the harms of the criminal justice system.