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Question: Age of Criminal Responsibility

4 May 2022

The Hon. R.A. SIMMS: I seek leave to make a brief explanation before addressing a question without notice to the Attorney-General on the topic of raising the age of criminal responsibility.


Leave granted.


The Hon. R.A. SIMMS: A national campaign to raise the age of criminal responsibility to at least 14, in line with other jurisdictions around the world, has been backed by a coalition of legal, medical and social justice organisations, including the Law Council of Australia, the Australian Medical Association and Indigenous-led groups. Here in South Australia we still charge children at the age of 10. According to the Law Society of South Australia, and I quote from them:


The majority of children that come face to face with the criminal justice system have a background of disadvantage and trauma.


This is a system that is punishing the most vulnerable. Over 50 per cent of children incarcerated are from Aboriginal or Torres Strait Islander background, further adding to the disadvantage that is already faced by these communities. In November 2020, the ACT Labor government committed to raising the criminal age of responsibility to 14. My question to the Attorney-General therefore is: will the Malinauskas Labor government follow the lead of the ACT Labor government and commit to finally raising the age of criminal responsibility in South Australia to 14?


The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector): I thank the honourable member for his question. It is an area that I know the Hon. Robert Simms certainly has a passion for and an interest in. I have been at events and had discussions with Robert Simms as part of that. Raising the age of criminal responsibility is an important issue. I will talk in a moment a bit more about how it intersects not just with my Attorney-General portfolio but, really importantly, with my Aboriginal affairs portfolio.


In South Australia under section 5 of the Young Offenders Act 1993, the minimum age of criminal responsibility as identified by the honourable member is 10 years old. Under that age, a child cannot be held to commit an offence, meaning they cannot be held criminally liable for their actions. The minimum age of criminal responsibility is the age at which a child can be held criminally responsible and therefore charged and convicted of criminal offences. As the member said, it is higher in many other places around the world. The United Nations had previously recommended a minimum age of criminal responsibility of 12 years old, which it has now revised to the age of 14.


While the age of criminal responsibility in SA is 10 years, between the age of 10 and 14 the common law rebuttal presumption is that the child does not understand the full consequence of their actions and is incapable of forming the mental element of the offence, but that is a rebuttable presumption. At 14 years and after a child can be held criminally responsible for their actions without that rebuttable presumption, meaning that they are considered capable of committing the crime and of forming the necessary mental element that goes into proving the commission of the crime.


There was a working group set up in 2018 under the auspices of the Council of Attorneys-General to examine this particular issue. The Meeting of Attorneys-General, which replaced the former council, was last held I am advised on 12 November 2021. At that meeting in November last year, state attorneys-general supported the development of a proposal to increase the minimum age of criminal responsibility from 10 to 12, including with regard to any exceptions, timing and discussion of implementation requirements.


The Northern Territory, as I am aware, has previously committed to raising the age to 12 years and will continue to work on their reforms and what diversion and programs and services may be in place. As the honourable member pointed out, the Australian Capital Territory has said that they are committed to raising the age to 14 years and are starting work on their own reforms outside of that council of attorneys-general.


One part, as I have been advised, that is a consideration of this group is the reforms of individual states and discussions about those threshold levels of 12 or 14 years of age. As I have said, the council of attorneys-general has agreed to look at reforms to 12, but one jurisdiction, the ACT, is moving towards 14.


I know that there has been commentary from the United Nations, other bodies and human rights organisations, some of which the Hon. Robert Simms has outlined today, for not raising this age yet. This is something that I have certainly had a number of discussions about with a wide range of people, led by Cheryl Axelby, who will be known to many as the former head of the Aboriginal Legal Rights Movement and who is now the head of an organisation called Change the Record, which advocates for raising the age. I certainly had discussions before the last election and I will continue those discussions with Cheryl and others in relation to this issue. It is an important issue.


We know that in both adult prisons and in youth detention there is a massive over-representation of Aboriginal people. A couple of years ago, I was told of a statistic that on occasions the entire population of the youth detention centre in South Australia is made up of Aboriginal people. There have been occasions when that is the case. Now that we are in government, I will be keen to test some of the things that I have been told. In any event, I don't think there is any doubt whatsoever that Aboriginal children, as a percentage, make up far too big a portion of our youth detention.


Raising the age, with appropriate other programs, could go some way to meeting that. Certainly, we see from some of the big national statements, whether it's the Uluru Statement from the Heart or the Closing the Gap targets, that this is an important issue. It is something that we will be turning our mind to and it is discussions I have been involved in and I will be pleased to keep the honourable member up to date with where we go and what we do on this issue.

The Hon. R.A. SIMMS: Supplementary: noting the minister's reply, has the minister had the opportunity to talk to the ACT Attorney-General about the approach taken there and if he hasn't done so, is that something that he will be doing?


The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector): I thank the honourable member for his supplementary question. I haven't done so yet, but very keen to do so.