Criminal Code Amendment (Age of Criminal responsibility) Bill 2022

The Northern Territory Government is raising the minimum age of criminal responsibility (MACR) from 10 to 12 years of age.

This is the first step in acknowledging and addressing the needs of children that often enter a lifetime cycle of crime from an early age.

The decision was informed by the recommendations from the Royal Commission into the Protection and Detention of Children in the Northern Territory (RCPDCNT), and the research that clearly shows that the earlier a child comes into contact with the justice system, the more prolonged their involvement is likely to be.

This is a preventative approach, focussing on early intervention and diversion to address concerning behaviours in children.

From commencement, if a child aged 10 or 11 engages in behaviour that would normally constitute an offence, they will no longer be dealt with through the criminal justice system.

Instead NT Police and Territory Families will initiate a response that will refer the child and their family to intensive parenting programs, as well as behavioural change programs such as Back on Track or Restorative Youth Justice Conferencing. This is the same way that we currently approach this kind of behaviour in children under 10.

Victims will still have access to support.

NT Police will continue to conduct investigations and respond to the needs of victims.

To keep the community safer, we have to be smarter when it comes to dealing with this very small cohort of children.

Summary of legislative amendments

What do the amendments to the Criminal Code propose?

The Bill will do the following:

  • raise the MACR from 10 years to 12 years of age
  • simplify the statutory tests commonly known as doli incapax which the Courts use to determine whether a child under 14 years of age has the mental capacity to commit an offence
  • for a charge or conviction relating to an offence committed or alleged to have been committed when the child was under 12 years or age:
    • remove that charge or conviction from a person’s public criminal history
    • prohibit new proceedings from being brought against the child
    • discontinue ongoing proceedings against the child
    • discharge the child from ongoing order or obligations (i.e. bail conditions).

The Bill was introduced into the Legislative Assembly in October 2022, and is expected to commence in 2023. The deferral of commencement will ensure that appropriate diversion pathways, programs and services are in place to support the needs of the children and their families.

What does raising the age of criminal responsibility mean?

The MACR is the minimum age at which children can be prosecuted for committing an offence. In Australia (across the Commonwealth, States and Territories), the MACR is currently set at 10 years of age. Therefore, raising the MACR means that all children under the age of 12 years of age will no longer face criminal charges.

What happens to past charges or convictions against a person under 12?

A charge or conviction relating to an offence committed or alleged to have been committed when a person was under 12 years of age will be expunged on commencement. Expungement of a charge or conviction will:

  • remove a criminal charge or conviction from a person’s public criminal history
  • prohibit the disclosure of any information about that charge or conviction in relation to information about a person’s criminal history.

It is important to note that unlawful disclosure of records of an expunged charge or conviction will be a criminal offence.

Will criminal proceedings against a child continue?

No, once the new MACR is raised to 12 years, any unfinalised proceedings for offences committed or alleged to have been committed under 12 years of age will be discontinued. This means that for children under 12:

  • new proceedings cannot be brought against the child
  • ongoing proceedings against the child will be discontinued
  • the child will be discharged from any ongoing orders or obligations (i.e. bail conditions)
  • the child will be released from police custody or detention.

What changes are being made to doli incapax tests?

The common law principle known as doli incapax is a test that the Courts use to determine whether a child under 14 years of age has the mental capacity to commit an offence. The Northern Territory’s Criminal Code has two slightly different tests as compared to most other Australian jurisdictions which only have one.

The amendments will simplify the two tests so that legal practitioners and the Courts will only need to use a single test when dealing with criminal offences. Under the new MACR, the test will only apply to children aged 12 years and 13 years.

What does this mean for Police?

The change means that children under the age of 12 years cannot be charged or prosecuted. However, it is important to note that police will still be able to investigate a crime and intervene where required. For example, if the child engaged in behaviour that is likely to cause serious and imminent risk to their own safety and/or members of the public (i.e. carrying a weapon in public), the police response will be to contain or prevent that risk.

Once police establish a child is under 12 years of age, the police response will also focus on the child’s safety and wellbeing. Police will take reasonable steps for the safe return of the child to their parents or responsible guardian. If the child does not have a responsible adult guardian, police may refer the child into the care and protection of the relevant government agency.

What will this mean for victims of crime?

Raising the MACR will not affect victims of crime in terms of their rights or entitlement for compensation. For example, victims may seek financial assistance under the Victims of Crime Assistance Act 2006.

Transitional arrangements

What will happen for child offenders who committed offences under 12 years of age?

After commencement, children under 12 years of age will no longer be criminally responsible for an offence.

This will apply to all offences committed or alleged to have been committed by a child after the commencement of the legislation.

The discontinuance and expungement provisions will mean that any proceedings ‘on foot’ for offences committed or alleged to have been committed by a child under 12 years of age before commencement, will be discontinued.

What type of proceedings does the new doli incapax test apply to?

After commencement the new doli incapax test will apply to offences committed after the commencement of the legislation.

After commencement the new doli incapax test will also apply to offences committed before the commencement of the legislation but only if the trial or hearing has not yet started relating to that offence.

After commencement the old doli incapax tests will continue to apply to offences committed before the commencement of the legislation where the trial or hearing has already started relating to that offence.


Last updated: 13 October 2022

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