Skip navigation

Raising the Age of Criminal Responsibility

01 December 2021

The Hon. R.A. SIMMS: The Young Offenders (Age of Criminal Responsibility) Amendment Bill was introduced by my predecessor, the Hon. Mark Parnell, early last year. The bill raises the age of criminal responsibility to 14 and requires that children in prison under that age be released from custody within a month of the commencement of the legislation. Since that introduction of the bill last year, South Australian children between the ages of 10 and 13 were incarcerated over 133 times in 2020—133 times.

At the Kurlana Tapa youth justice centre at Cavan, 21 per cent of detainees were aged 10 to 14. Those children returned to the centre an average of four times the same year—that is, 21 per cent of the detainees aged 10 to 14. These are children. Most 10 to 13 year olds in that group had disabilities, identified as First Nations people and/or were under the guardianship of the child protection department. An inspection of the facility revealed more than 60 per cent of young people in the facility were First Nations people.

A study from the Australian Institute of Health and Welfare revealed that South Australia detains children at a higher rate than the national average. As it is with almost every stage of contact within the criminal justice system, First Nations people are over-represented. These facts clearly demonstrate the conclusions that many legal, medical, scientific and social justice organisations have come to, not only in South Australia but around the world; that is, holding children as young as 10 criminally responsible for their actions not only is medically unsound but is inhumane and a violation of the basic human rights of children.

That it disproportionally affects children from disadvantaged backgrounds, racial and ethnic minorities and those with disabilities is also appalling. And it increases the risk of reoffending into the future, locking children into a cycle of repeated contact with the criminal justice system, which they may struggle their whole lives to break away from.

The Royal Australasian College of Physicians is of the view that children under the age of 14 may not have the required capacity to be criminally responsible for their actions. This is based on a vast body of neurological evidence, which has shown that the brain of a child between the ages of 10 and 14 is not fully developed.

The Australian Medical Association has confirmed the effects of incarceration and isolation at such an early age to be severe. The impacts include worse health, lowered education and employment outcomes, even the likelihood of premature death. These are the consequences that endure far beyond any time a child may spend behind bars. We do lifelong damage to these children by allowing their incarceration. Prison is no place for a child.

The damages that flow from this practice disproportionally affect First Nations children in South Australia, who make up 65 per cent of the young children behind bars nationwide. In SA, youth diversion by police in relation to Indigenous youth is at its lowest rate since records began, with only 23 per cent of First Nations offenders being diverted away from court. This is a travesty.

It is no secret that there is a serious problem with the incarceration rates of First Nations people in Australia, particularly with young people, who we are allowing to fall into the quicksand of our criminal justice system, a criminal justice system that is failing these children. These children do not need incarceration and isolation. Our efforts need to be directed towards keeping them safe and supported within their communities through a focus on rehabilitation, in line with recommendations from First Nations groups, social justice organisations and the Aboriginal and Torres Strait Islander youth justice principle.

Raising the age is a meaningful step towards stopping the acceleration of First Nations incarceration rates and presents a pathway to reverse the growth in prison populations in our state. This is particularly pressing, given we have reached the 30th anniversary of the Royal Commission into Aboriginal Deaths in Custody this year.

Australia has faced international condemnation for its records on juvenile detention, and rightly so. Thirty-one countries of the United Nations called on Australia to raise the age of criminal responsibility to the global average of 14. This is encouraged by the Convention on the Rights of the Child committee, a convention to which Australia is a party. Sadly, Australia is failing to meet its obligations under this convention—and that is a national shame.

The attorneys-general at a national level recently announced their support of the development of a proposal to raise the age to 12. This is inadequate. It is insufficient. If the age were lifted to 12, as suggested, over 81 per cent of children aged under 14 in detention would still remain there. A national campaign to raise the age of criminal responsibility has been supported by over 90 organisations, including the Law Council of Australia and the Australian Medical Association, and First Nations-led groups have revealed not only the urgency of this issue but the incredible consensus that exists around it. Raising the criminal age to 14 is simply the right thing to do. It is the moral thing to do.

We have seen the Greens in New South Wales, Victoria and Queensland table bills to raise the age of criminal responsibility. WA, Victoria and Queensland all have successful programs in place which could serve as alternatives to incarceration for children, and they could be a model implemented here in South Australia. These programs have a focus on therapeutic responses to offending behaviour, and many have a strong element of First Nations control and directorship. These programs are suggested as more appropriate solutions for children who need intervention and guidance, and are at risk of involvement with the criminal justice system.

The Greens in the ACT secured a commitment from the government last year to raise the age to 14 and, following the 2020 election, ACT Labor and the Greens have set a reform agenda which places it as a priority. The ACT Attorney-General, Shane Rattenbury, hopes to have legislation before the assembly by early next year. The discussion paper released this year expresses their intention to pursue responses outside the traditional justice system and to develop an alternative model. I quote from the report, which states:

Raising the age provides the opportunity to redesign the approach we take to understanding and responding to the harmful behaviour of children and young people. Decriminalising responses to this behaviour will shift the focus of the response from the deeds of the child to what the child needs to have a safe, stable and supportive environment.

Surely that should be our primary responsibility when we are dealing with children. Surely we should be looking at what we can do to help and support them and ensure that they can reach their full potential, rather than condemning them to a life of interaction with our criminal justice system.

Our age of criminal responsibility is an international disgrace, it is an international shame and it should be one that causes great humiliation for the Australian government and the government of this state. We are out of step on this issue by practically every measure. We are out of step internationally, we are out of step with medical and mental health experts and we are out of step with what is the ethical consensus with what we know to be the right thing to do. We cannot allow ourselves to come out of step with what other jurisdictions are doing in our own country as well.

Next year, when parliament resumes, the Greens will be reintroducing this bill. I am hopeful that we will be able to work with whoever is in government to resolve this urgent issue and to do the right thing by the children of South Australia. I urge the Liberal Party to commit to supporting this reform if they are in government, and I urge the Labor Party to make a similar commitment that, if they are in government, they will take action on this because it is simply an injustice that has been allowed to continue for far too long. It is a national disgrace, it is an international disgrace, and it is incumbent on this parliament and all sides of politics to come to the table to deal with this reform and to stop the cruel treatment of vulnerable children—children who do not belong in our prison system.