Youth crime, the Senate inquiry, and the age of criminal responsibility.

What did the Senate youth justice inquiry find?

The Senate Legal and Constitutional Affairs References Committee has reported on its inquiry into Australia's youth justice and incarceration system. Its central finding is blunt: the sense of a youth crime wave gripping the country is a false narrative, and the data does not support it. The committee said youth offending has been in decline across the jurisdictions for well over a decade.

The committee also found that the laws and practices governing children differ sharply from one state or territory to the next, so that a child receives very different treatment depending on where they happen to live. It recommended national minimum standards for youth detention, a public information effort to correct the false narrative, and a national task force to coordinate reform. The federal government has said it will consider the recommendations and respond in due course.

A parliamentary committee report is not law. It does not change what any child can be charged with tomorrow. But it is a useful map of a system that has moved a long way in recent years, and it points straight at the question that decides everything else for a young client: how old do you have to be before the criminal law can touch you at all.

Is there really a youth crime crisis in Australia?

The public mood and the numbers point in different directions. Reporting of youth crime is loud, and some categories of offence have risen in some places over a year or two. But the long-run trend is down. Australian Bureau of Statistics figures show the number of young offenders proceeded against by police at its lowest level since national recording began in 2008-09, with the rate of offenders aged 10 to 17 falling markedly over the past decade. The committee treated that decline, not the headlines, as the reality.

There is a harder truth alongside it. Even as offending has fallen, the number of children held in detention on an average night has crept up, and Aboriginal and Torres Strait Islander children are grossly over-represented among them. So the country is charging fewer children while locking up more of a particular group of them. That is the tension the committee was asked to examine, and it is the reason the age of criminal responsibility has become such a live issue.

What is the minimum age of criminal responsibility in Australia?

The minimum age of criminal responsibility is the age below which a child cannot commit a criminal offence. Under that age, the child cannot be arrested, charged, prosecuted or found guilty of anything. There is no single Australian answer. As at September 2026 the position runs like this.

In New South Wales the age is 10. Section 5 of the Children (Criminal Proceedings) Act 1987 (NSW) provides that no child under 10 can be guilty of an offence. Queensland, South Australia and Western Australia also sit at 10, as do offences under Commonwealth law.

In the Australian Capital Territory the age is now 14. The ACT first lifted its age from 10 to 12 in November 2023, then to 14 from 1 July 2025, keeping a small set of exceptions for the most serious and harmful offences. It is the first Australian jurisdiction to reach 14.

Victoria raised its age from 10 to 12. It had planned to go further, to 14 by 2027, then dropped that plan. Tasmania has committed to raising its age to 14 without any exceptions, through a staged reform expected to be complete later this decade, so its full change is still to come. The Northern Territory went the other way: it raised its age to 12, then lowered it back to 10 in October 2024. So a single set of facts can make a child a criminal in one place, a person the law cannot touch in another, and something in between across the border.

What is doli incapax, and how does it work?

In the places that keep the age at 10, a second protection sits above it for the youngest children. It is the common-law presumption of doli incapax, which means incapable of wrong. A child aged 10 to 13 is presumed to be incapable of committing a crime. That presumption is not a formality. To convict a child in that age range, the prosecution has to rebut it, and prove beyond reasonable doubt that the child knew the act was seriously wrong, as distinct from merely naughty or mischievous.

The High Court set out the modern test in RP v The Queen [2016] HCA 53. The older the child and the more obviously wrong the act, the easier the presumption is to rebut, but the prosecution must prove actual knowledge of serious wrongdoing in the individual child, not just that an ordinary child would have known. Evidence of the child's background, maturity and understanding all bear on it. The firm's separate note on doli incapax and the age of criminal responsibility in NSW and the ACT sets out how the presumption is argued in practice.

Does locking up children reduce crime, or does diversion work better?

This is where the committee was most direct. It found compelling evidence that community-based diversion, early intervention and prevention do more to reduce offending, and cost far less, than criminal justice responses built around detention. The research the committee drew on points the same way: children placed on community-based orders reoffend less often than children sent into custody, and regions that divert more young people tend to see less youth reoffending.

Diversion is already part of the system in New South Wales. The Young Offenders Act 1997 (NSW) provides a scheme of warnings, cautions and youth justice conferences that can keep a child out of court altogether for many offences. The firm's note on the Young Offenders Act, cautions and conferences explains how that scheme works and when it is available. The committee's point is that these responses are the ones the evidence supports, and that the country should lean on them rather than on custody.

What about the push to treat older children as adults?

The debate does not run only at the young end. At the other end, there is political pressure in several states to treat children who commit serious offences more like adults, whether through adult sentences for certain offences or by moving matters out of the children's jurisdiction. That is a different lever from the minimum age, and it pulls in the opposite direction from the committee's findings. In New South Wales, some serious offences committed by children are already dealt with as serious children's indictable offences, which can be heard in the higher courts. The firm's note on when a child is tried as an adult in NSW sets out that category and what it means for sentencing.

So the two ends of the youth justice question are moving at once. The minimum age decides whether the criminal law applies to a child at all. The adult-time rules decide how heavily it applies to the older children who are already inside it. A parent trying to understand where their child stands has to know which of these questions their case turns on.

What this means for a child, or a parent, facing the system.

The first question in any matter involving a young person is age. If the child is below the minimum age for the jurisdiction, there is no offence and no prosecution. If the child is 10 to 13 in a place that sits at 10, doli incapax applies, and the case can fail on that alone if the prosecution cannot prove the child understood the act was seriously wrong. Those are not technicalities. They are the substance of a young person's defence, and they are often the whole of it.

After that come the diversion options: whether the matter can be dealt with by caution or conference rather than a finding of guilt, and how to keep a child who has come to police attention from being drawn deeper into the system. These choices are made early, and they shape everything that follows. If a child of yours has been charged, or spoken to by police, the sooner advice is taken the more of these doors remain open. A charge against a child is not the end of the story, and how it is handled in the first week often matters more than anything that comes later.

Frequently asked.

Can a 10-year-old be charged with a crime in Australia?

It depends on where the child is. In New South Wales, Queensland, South Australia, Western Australia, the Northern Territory and for Commonwealth offences, the minimum age is 10, so a child of 10 can be charged. In Victoria the minimum age is 12. In the ACT it is 14, with narrow exceptions for the most serious offences. A child below the minimum age for their jurisdiction cannot be charged at all.

What is the minimum age of criminal responsibility in NSW?

In New South Wales the minimum age is 10. A child under 10 cannot commit a criminal offence. For children aged 10 to 13, the presumption of doli incapax applies, so the prosecution must prove the child knew the act was seriously wrong, not merely naughty, before the child can be convicted.

Is the age of criminal responsibility being raised across Australia?

There is no single national age and no single direction. The ACT has raised its age to 14. Victoria raised it to 12 and then dropped a plan to reach 14. Tasmania has committed to 14 without exception through a staged plan. The Northern Territory raised its age to 12 and then lowered it back to 10. New South Wales, Queensland, South Australia, Western Australia and the Commonwealth remain at 10.

What is doli incapax?

Doli incapax is a common-law presumption that a child aged 10 to 13 is incapable of committing a crime. It applies where the minimum age is 10. To convict a child in that range, the prosecution must prove beyond reasonable doubt that the child knew the act was seriously wrong, and not merely naughty. The leading authority is RP v The Queen [2016] HCA 53.

Does locking up children reduce crime?

The Senate committee found compelling evidence that community-based diversion, early intervention and prevention are more effective and less costly than detention at reducing offending. Research also indicates children on community-based orders reoffend less often than children sent to custody. The weight of the evidence favours keeping children out of detention where it can be done safely.

What did the Senate youth justice inquiry recommend?

It recommended national minimum standards for youth detention, a public information effort to counter what it called a false narrative of a youth crime wave, and a national task force drawing together youth justice authorities, police and other agencies. It found the current system fragmented, with children treated very differently depending on where they live. The federal government has said it will respond in due course.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Brady & Associates Lawyers, as at 20 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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