When a Child Breaks the Law: How the Juvenile Justice System Works in Australia

Key Takeaways

• A Separate System: Australia has a distinct Juvenile Justice System for young people (generally under 18) that operates differently from the adult system. Its primary focus is on rehabilitation, not punishment.

• Age of Responsibility: Children under 10 years old cannot be found guilty of a criminal offence. For children aged 10 to 13, the prosecution must overcome a principle known as doli incapax.

• The Children's Court: This is a specialist court designed to be less intimidating than an adult court. It is closed to the public to protect the child's privacy.

• Specialist Legal Help is Vital: The goals and procedures are unique. Any young person charged with an offence needs a lawyer who specialises in children's criminal law.

Introduction

Discovering that your child has been charged with a crime is one of a parent's worst nightmares. The confusion, fear, and worry can be overwhelming. In this stressful time, it is vital to understand that the Australian legal system does not treat children and adults the same way.

Australia has a separate and distinct Juvenile Justice System designed with fundamentally different goals. While an adult court's focus includes punishment and public deterrence, the juvenile system's guiding principle is to support the rehabilitation of the young person and divert them from a life of crime.

This guide explains how this system works, from the crucial question of criminal responsibility to the unique procedures of the Children's Court and its focus on giving young people a second chance.

Important Note: The laws governing young offenders are legislated by each state and territory. This article uses the law in New South Wales (NSW), primarily the Children (Criminal Proceedings) Act 1987 and the Young Offenders Act 1997, as a guiding example.

Learn more about the Children (Criminal Proceedings) Act 1987 at New South Wales Legislation.

Before any charge can proceed, the law must determine if the child is old enough to be held responsible for their actions.

The Minimum Age of Criminal Responsibility

In all Australian states and territories, the law is clear: a child under the age of 10 cannot be charged with a criminal offence. They are considered too young to form a criminal intent.

Doli Incapax: The Grey Area for Children Aged 10 to 13

For children aged 10, 11, 12, and 13, the law applies a centuries-old principle called doli incapax. This is a Latin term meaning "incapable of wrong."

• The Presumption: The law presumes that a child in this age bracket does not know the difference between a "naughty" act and a "seriously wrong" criminal act.

• How it Works: To prosecute a child aged 10-13, the prosecution must first present evidence to the court to rebut this presumption. They must prove beyond a reasonable doubt that the child knew, at the time of the offence, that their actions were seriously wrong, not just mischievous. If the prosecution cannot prove this, the child cannot be convicted.

Once a child turns 14, they are presumed to be criminally responsible for their actions.

When a young person (aged 10 to 17) is charged with an offence, their case is almost always heard in the Children's Court. This is a specialist court designed to be less intimidating and more effective for young people.

Key differences from an adult court include:

• Closed to the Public: The courtroom is closed to the general public and the media to protect the privacy of the child.

• Less Formal: The procedures are less formal. For example, the magistrate, lawyers, and the child often sit around a large table rather than in a traditional courtroom setup.

• Focus on Communication: The magistrate is a specialist and will make an effort to explain the proceedings in language the child can understand.

• Parental Involvement: Parents or guardians are generally required to attend with their child.

The primary purpose of the juvenile justice system is rehabilitation. The law recognises that children's brains are still developing, they are more capable of change, and a criminal conviction at a young age can have a devastating impact on their entire life.

Because of this, the system has many options to divert young people away from a formal conviction.

For less serious offences, the Young Offenders Act (NSW) provides several diversionary options that avoid a formal court process. These can include:

• Warnings: A formal warning from a police officer.

• Cautions: A more formal caution administered by a senior police officer, often in the presence of a parent.

• Youth Justice Conferencing: This is a key feature of the system. It is a meeting between the young person, their family, the victim (if they agree to participate), police, and support professionals. The group discusses the harm caused and agrees on an "outcome plan" for the young person to complete, which could include an apology, paying for damages, or attending a program.

If a matter proceeds to a finding of guilt in the Children's Court, the magistrate will still focus on rehabilitation when sentencing. Options range from a dismissal to, in the most serious cases, a detention order. A Control Order (a sentence in a Youth Justice Centre) is always a last resort.

Learn more about the Young Offenders Act 1997 at New South Wales Legislation.

When a child or teenager comes into conflict with the law, it is a deeply stressful time for the whole family. However, it is crucial to remember that the Australian Juvenile Justice System is designed to help, not just to punish.

Its focus on rehabilitation, diversion, and privacy is a recognition that young people have the capacity to change and deserve a second chance. The most important step any parent can take is to engage with the process, support their child, and secure expert legal representation immediately to ensure their child's rights are protected at every stage.

AHL Legal: Your Partner in Juvenile Justice Cases

Facing a juvenile justice case or need guidance on the Children's Court process in Australia? At AHL Legal, we provide expert legal advice and representation to protect your child's rights and achieve the best possible outcome.