Children's Criminal Responsibility in Australia: Some Legal, Psychological and Human Rights Issues

Mathews, Benjamin P. (2000) Children's Criminal Responsibility in Australia: Some Legal, Psychological and Human Rights Issues. Australia and New Zealand Journal of Law and Education, 5(2), pp. 27-45.


Australian law marks the transition from a protected state of childhood and legal incapacity to a state of liberated adulthood and legal responsibility in many facets of life. The law says at what age an individual acquires legal capacity to make contracts, have sexual intercourse, consent to medical procedures, marry, consume legal drugs, drive a motor vehicle, and participate in elections. These changes in legal personality are not catalysed by merit or personal characteristics, but by the expiry of a span of time from each individual’s date of birth. The ages at which law sets these capacities is informed by historical habits, changing perceptions of children, and by other factors such as social climate, realpolitik and economics. Yet, since individual human beings develop at different rates – physically, intellectually, psychologically and emotionally – it is clear that the law’s conferral of rights and imposition of responsibilities occurs at inappropriate times for many individuals. This discussion sets out the Australian law ascribing criminal responsibility to children. It recognises the problems inherent in the Australian laws, and then outlines some of their legal consequences. These consequences include the low age of criminal responsibility in Australia compared with other nations, and the bareness of the law’s inquiry into when a child is criminally responsible, in many cases deciding the issue simply by age, and at most only seeking to assess the offender’s cognitive state. These legal principles demand an examination of psychological and human rights issues. This article refers to developmental psychological evidence to demonstrate that it is theoretically impossible and morally unjustifiable to measure criminal responsibility only by age. Finally, the Australian legal position is contrasted with international law’s promotion of children’s rights.

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ID Code: 12613
Item Type: Journal Article
Refereed: Yes
Additional Information: For more information, please refer to the journal's website (see hypertext link) or contact the author.
Additional URLs:
Keywords: children's criminal responsibility, law, psychology, human rights
ISSN: 1327-7634
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Criminal Law and Procedure (180110)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Law and Justice Research Centre
Copyright Owner: Copyright 2000 Australia and New Zealand Education Law Association
Deposited On: 25 Feb 2008 00:00
Last Modified: 12 May 2011 02:11

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