Recent incidents involving school students reported in the media, in particular involving the misuse of social media, have raised queries about students and their capacity to commit criminal offences.  Related to these queries are questions about the age at which a child can be held criminally responsible for their actions.

In Australia, section 7.1 of the Criminal Code Act 1995 (Cth) (the Criminal Code) states that the statutory minimum age of criminal responsibility across the country is 10 years. Previously the ACT and TAS had lower age limits of eight and seven respectively. The requirement for a minimum age is supported by Article 40 of the United Nations Convention on the Rights of the Child (UNCROC) where, although a specific age is not stated, there is a requirement for signatory countries to establish a minimum age below which children are presumed not to have the capacity to infringe the law.

In addition, section 7.2 of the Criminal Code states that a child aged 10 years or more but under 14 years, can only be held criminally responsible for an offence if the child knows that his or her conduct is wrong. The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.

Generally, children are considered to lack the intent or state of mind (mens rea) and are considered incapable of committing a crime or wrongdoing (doli incapax). Basically, in lay person’s terms, if a child aged over ten but under 14 years commits a criminal act, the prosecution has to be able to prove that the accused child was able, at the time of the alleged offence, to adequately distinguish between right and wrong before a trial can result in a possible conviction.

However, this then allows one to surmise that any child 14 years and over (and under 18 in most jurisdictions), who breaches the law, can be held legally liable (under juvenile justice laws) for their actions.  This is relevant to students in that age range who are unaware of their potential to be held criminally liable.

The issue: student to student offending

The news is increasingly dominated by reports of students sharing inappropriate images of persons aged under 18.  The conduct would normally attract criminal sanctions under state and territory criminal laws, particularly those around the creation or distribution of child pornography, if the alleged offender was aged 18 or over. In most states and territories, significant exemptions exist to tough pornography laws to recognise situations where minors were involved in an alleged offence but there was consent between the parties - therefore not making it a crime.

That said, many state and territory laws also contain provisions which recognise that children aged between 10 and 14 can be criminally liable for sexual offences. Many school students may be unaware how their actions could have criminal consequences.

The Victorian Education Department has produced useful information on its website regarding the issue of student to student offending, and listing the relevant criminal offences for schools to be aware of and how schools should manage a student to student incident.  If an incident occurs on school grounds, then the school could also face claims it breached its duty of care by failing to protect the victim involved.  This 2016 NSW case raised issues around duty of care.

What does this mean for Schools?

Firstly, schools need to constantly remind their students that they do not sit above or outside the law. Basically, any student aged over 10 could be held criminally liable for a breach of law.

The NSW Secondary Schools Principals Council said schools were doing a "tremendous job" educating students about their responsibilities online. President Chris Presland, who is the principal of St Clair High School, said students were given face-to-face and online education about what is acceptable and what is not. "There is a huge amount of proactive work in this space," he said.

In a recent Western Australian case, two boys, aged 12 and 17, both attending a non-government school, had been accused of separate rape charges and allowed to continue to attend their school. This case followed another matter where a 10-year-old boy from a government school had been charged with the rape of an eight-year-old boy, but also continued to attend his school.

According to the report, a parent whose child attends the same school as the two boys accused of child rape, said she believed parents would start removing their children from the school if they were made aware of the situation. "I am really concerned they are able to return to the school without any protection for the other children," she said. "I'm not saying let's destroy 17-year-old and 12-year-old children... there's the potential for rehabilitation – but if the legal system is not putting in place protective measures for other children, something's wrong with that.”

Sue Ellery, the newly appointed Minister of Education in WA, in her first official interview since moving into office, said that within hours of being sworn in, she had "requested advice for other education options for students accused of sexual offences to keep them out of schools."

In Western Australia, and in similar jurisdictions in nearly all states and territories, the Children’s Court of Western Australia Act deems that a child’s conviction cannot be disclosed to anyone other than “a court of law, a person acting in the performance of duties under any written law, to a person who as part of the person’s duties is concerned with the custody or welfare of the child.”

So what can a school do in a situation such as this? There are students who have been charged, but not necessarily convicted, of sexual assaults. There are the victims of the assaults and their parents and the wider community who expect all children, especially their own, to be safe at school. How can a school confirm that the victim and other children are safe at all times at school if the alleged perpetrators of sexual assault crimes are still in the school and the school cannot divulge that they know of the alleged crime? This is not just a single incident. The two cases in Western Australia are just the most recent.

Non-government schools are able to discipline students by way of suspension, exclusion or expulsion; however, if the behaviour occurs away from school and is not related to the school in any way, can they exercise this process? Probably not. However, from a social perspective, students who are identified, via social media or through other means as having been charged for serious sexual assault, are often isolated or socially ostracised by other students and schools may need to ask parents to look for other schooling options, not just to support the victims, but also to support the juvenile offenders. Schools that are faced with this terribly sad situation need to have a strong supportive culture and an equally strong and supportive board, parent body and executive - invariably, the principal will carry this burden heavily.