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Crimes Legislation Amendment (Age of Criminal Responsibility) Bill 2019

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2019

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Crimes Legislation Amendment (Age of Criminal Responsibility) Bill 2019

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

Rebekha Sharkie MP



Crimes Legislation Amendment (Age of Criminal Responsibility) Bill 2019

 

 

OUTLINE

 

The minimum age of criminal responsibility (‘MACR’) is the minimum age below which the law determines that children do not have the capacity to infringe the criminal law and cannot be held responsible in criminal proceedings.

 

The median MACR in the international community is 14 years of age. Most European countries have set a MACR of between 14 and 16 years of age, while others such as China, Russia, Japan and Sierra Leone have a MACR of 14.

 

The MACR across Commonwealth, State and Territory legislation is currently 10 years of age.

 

The Bill increases the age of criminal responsibility for commonwealth offences contained in the Crimes Act 1914 and Criminal Code Act 1995 to 14 years of age.

 

The increase in MACR from 10 to 14 years is consistent with the recommendations of the UN Committee on the Rights of the Child (‘UNCRC’) as set out in General Comment No. 24 (2019) Children’s rights in the child justice system .

 

An increase of the MACR to 14 years of age was also recommended by the UNCRC in the Concluding Observations on the Combined 5 th and 6 th Periodic Reports of Australia (27 September 2019).

 

For clarity, children at or above MACR but below the age of 18 may still be subject to criminal proceedings. The Bill will only apply to offences committed on or after the commencement of the Act.

 

 

FINANCIAL IMPACT

 

The bill will have no financial impact.

 

 

NOTES ON CLAUSES

 

Clause 1

Clause 1 provides for the Act to be cited as the Crimes Legislation Amendment (Age of Criminal Responsibility) Act 2019.

 

 

Clause 2

 

Clause 2 provides that the Bill shall commence the day after the Act receives the Royal Assent.

 

 

 

Clause 3

 

Schedule 1

 

Crimes Act 1914

 

Items 1 and 2

Items 1 and 2 amend sections 4M of the Crimes Act such that a child under the age of 14 years cannot be liable for an offence against a law of the Commonwealth.  

 

Item 3

Item 3 repeals section 4N as Items 1 and 2 above make the section redundant.

 

Items 4 and 5

Item 4 and 5 amends section 23WA(1) and 23WC to define a ‘child’ for the purposes of forensic procedures on a suspect to be a person of at least 14 years but less than 18 years.

 

Items 6 and 7

Items 6 and 7 amends section 23YQE to clarify that the Part 9A, the carrying out of forensic procedures at the requests of foreign countries, does not apply to a child under 14 years of age.

 

 

Criminal Code Act 1995

 

Item 8 and 9

Items 8 and 9 amend section 7.1 of the Criminal Code Act 1995 such that a child under the age of 14 cannot be criminally responsible for an offence.

 

Item 10

Item 10 repeals section 7.2, as Items 8 and 9 above make section redundant.

 

Item 11

Item 11 provides that amendments made by the Bill apply in relation to offences committed on or after the commencement of the Act.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Crimes Legislation Amendment (Age of Criminal Responsibility) Bill 2019

This bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the bill

 

The minimum age of criminal responsibility (‘MACR’) is the minimum age below which the law determines that children do not have the capacity to infringe the criminal law and cannot be held responsible in criminal proceedings.

 

The median MACR in the international community is 14 years of age. Most European countries have set a MACR of between 14 and 16 years of age, while others such as China, Russia, Japan and Sierra Leone have a MACR of 14.

 

The MACR across Commonwealth, State and Territory legislation is currently 10 years of age.

 

The Bill increases the age of criminal responsibility for commonwealth offences contained in the Crimes Act 1914 and Criminal Code Act 1995 to 14 years of age.

 

The increase in MACR from 10 to 14 years is consistent with the recommendations of the UN Committee on the Rights of the Child (‘UNCRC’) as set out in General Comment No. 24 (2019) Children’s rights in the child justice system .

 

An increase of the MACR to 14 years of age was also recommended by the UNCRC in the Concluding Observations on the Combined 5 th and 6 th Periodic Reports of Australia (27 September 2019).

 

For clarity, children at or above MACR but below the age of 18 may still be subject to criminal proceedings.

 

 

Human rights implications

 

The human rights that may be of relevance to the Bill are those set out in Articles 3 and 40 of the Convention on the Rights of the Child (CRC).

 

Article 3 provides that in all actions concerning children, including courts of law, the best interests of the child shall be the primary consideration and Article 40 requires the establishment of minimum age of criminal responsibility.

 

The bill advances the rights of the child by bringing Australia’s approach to juvenile justice in line with the recommendations of the United Nations Committee on the Rights of the Child and General Comment No. 24 (2019) Children’s rights in the child justice system .

 

 

 

Conclusion

The measures in this Bill are compatible with the applicable human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

 

 

Rebekha Sharkie MP

Member for Mayo