Debating the Age-Old Question: Raising the Age Requirement for Murder in Aotearoa New Zealand

By Emma Burns

A Call to Action

At ten, a child is not old enough to be left home alone but is old enough to be held criminally responsible for murder or manslaughter. In New Zealand, the minimum age of criminal responsibility is ten. From twelve, a child can be held criminally responsible for other serious crimes. The only limitation is that a child between ten and thirteen must have the proven capacity to know that their act or omission was wrong or that it was contrary to the law.

Article 40(3) of the Convention on the Rights of the Child requires States that are party to the Convention -New Zealand included - to legislate a minimum age below which a child shall be presumed not to have the capacity to infringe the penal law. Although Article 40(3) does not specify a minimum age, state parties are encouraged to increase the age to twelve as the absolute minimum. New Zealand’s Crimes Act 1961 lags alarmingly behind international standards, and searching for a reason why from authorities is fruitless. The UN Committee on the Rights of the Child has called upon New Zealand to raise the minimum age of criminal responsibility to at least fourteen years old. The Government’s response to this call to action has been a telling silence.

The Current Law

The current law in the Crimes Act 1961 stands contrary to the UN's advice that the minimum age of criminal responsibility does not differ according to the cause of action. Under section 22 of the Crimes Act, children aged ten to thirteen can face murder or manslaughter charges in the High Court. For children aged twelve to thirteen, criminal proceedings can be initiated in the Youth Court regarding serious offending where the maximum penalty is at least fourteen years jail time, or, where the child is a repeat offender and the maximum penalty for their last offence was more than ten years but less than fourteen years in jail. The remaining youth offending between those ages is dealt with under the care and protection system. 

The Cause for Change

It is certainly desirable to keep pace with international legal standards, however, we must also acknowledge that the principal function of criminal law is deterrence. But, if harsher criminal responsibility laws no longer serve the purpose of deterrence, the necessity of those harsher laws come into question. One comes to ask: is there another, more effective path to justice? For example, the defence of insanity exists because when a defendant is not in the state of mind to recognise the wrong of their action, punishing them harshly will not have the desired effect of deterring them from doing it again.

At the age of ten, is a child able to recognise the wrongfulness of their action? Will the threat of criminal responsibility guide their engagement with society? There is evidence that, as the frontal cortex develops, young children are unlikely to understand the impact of their actions or to comprehend criminal proceedings. Such differences in risk-taking and impulse-control could constitute the basis for recognising lesser culpability, where crime prevention is best carried out through the care and protection system.

The current law is also inconsistent with the conceptualisation of tamariki (children) under Te Ao Māori. In Te Ao Māori, tamariki are sacred gifts protected by tapu (special rules and restrictions) derived from the mana (spiritual authority) of spiritual beings and ancestors. Isolation and stigmatisation from their families and communities, under divergence from the youth justice community homes and residences in the care and protection system[RS1] , is inconsistent with the tikanga principles of whakapapa and whanaungatanga. Already, Aotearoa New Zealand’s history of colonial injustices, and the resulting generational harm, is reflected in the criminal justice system. As of March 2022, of the 140 young people held under the youth justice system, seventy-three per cent were Māori. Although the Rangatahi Courts offer opportunities to connect with Te Ao Māori, we should ask whether the utility of the youth justice system could be better served through a greater focus on prevention.

Whilst public safety is a legitimate concern, as of March 2022, only four per cent of children within the youth justice system were aged ten to thirteen. To shed further light on the relatively low number of offenders, there has not been a reported case of murder or manslaughter by a ten or eleven-year-old since the 1970s. The law criminalising ten year olds is more symbolically harmful, than it is practically useful in preventing crime. In other words, concern for public safety must be balanced against the child's rights under the Convention and recognise that the youth justice system is only effective if it is actually preventing criminal behaviour.

The Practicalities of Reform

This is not to paint a dire picture of New Zealand’s youth justice system. Minor offending is commendably dealt with out of court by Police Youth Aid officers who devise an Alternative Action Plan with the young person and their family on how they can make up for their wrongdoing. Te Ao Māori also has a respected place in the youth justice system through optional diversion to the Rangatahi Court in appropriate cases. The Rangatahi Courts encourage whānau to play an active role and facilitate reconnection to cultural roots and community.

Instead, the goal is to build on the system's successes by achieving deterrence in a context that recognises the generational injustice borne by Māori youth and their overrepresentation in the youth justice system and respond accordingly. At a minimum, there is a compelling case for raising the minimum age of criminal responsibility to twelve. The symbolic harm of holding a ten-year-old criminally responsible compared to the actual rate of offending offers little reason for turning a deaf ear to the UN's advice and diverging from the path increasingly taken by the international community. To resist reform is also to contradict the tapu nature of tamariki; to take away from a genuine commitment to Te Ao Māori in the youth justice system. It is time for Aotearoa New Zealand to answer the UN’s call to action and take the first steps towards legislative reform.

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