7 July 2022

The Hon. R.A. SIMMS: I want to thank members for their contributions: the Hon. Kyam Maher, the Hon. Michelle Lensink and the Hon. Frank Pangallo. I am very disappointed to hear that the government will not be supporting this reform, given it is a very straightforward reform, but as the honourable leader has noted this was the position of the Labor Party in opposition as well is in government.

Nonetheless, it is a very disappointing position that they have taken, because the Labor government ministers over in the ACT, New South Wales and Queensland are all subject to this level of transparency and scrutiny, and I cannot really comprehend why Labor ministers here in South Australia would not want to subject themselves to the same level of scrutiny.

We have always believed in the Greens that transparency is the best disinfectant—let the light shine—and that the public has a right to know who is meeting with government ministers and for what reason. The Attorney-General has flagged privacy concerns, but the bill deals with those issues. It makes it very clear that personal meetings are not to be disclosed and confidential information is not to be disclosed. It also gives the minister the power to appeal to the tribunal to request that information not be disclosed if they consider it is going to compromise the private information of an individual, so the claims that have been made are not accurate.

I am hopeful that the bill will pass this chamber. If it does, I hope that the government will reconsider its position in the other place. Of course, the Greens look forward to seeing the detail of the other transparency reforms the Labor Party has flagged tonight, and our position on political donations is well known and longstanding. However, this is not an either/or proposition: we can support this reform and also take other action to improve transparency. Certainly, that is what the Greens will be advocating for.

14 June 2022

The Hon. R.A. SIMMS: Last week, my office received a substantial number of emails, as I believe have other members of this place, calling for the age of criminal responsibility to be raised to 14 years. Just last week, the Tasmanian government committed to raising the age to 14, in line with the recommendations from the United Nations. This follows the ACT, where a similar commitment has been made.

The council of attorneys-general last year postponed the decision to raise the age, meanwhile children between the ages of 10 and 14 continue to be sent to detention. When asked about this issue last month, the Attorney-General told this house that raising the age is an important issue. He also informed us that, and I quote, 'on occasions the entire population of the youth detention centre in South Australia is made up of Aboriginal people'.

Given the Attorney-General sees this as such an important issue, my question to him is: how many children does the Malinauskas government intend to allow to end up in detention before it follows the lead of other states and territories and raises the age of criminal responsibility 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 important one, and I note his strong interest in this area. I think since the honourable member last asked that question a number of discussions have taken place, and certainly over the winter break I will be discussing this with colleagues, initially in the ACT but following the announcement the honourable member referred to that I think Tasmania made last week about their intentions, I will also seek advice about what they are doing.

It is not just a case of changing a bit of the legislation to say instead of 10 substitute the number 14. It is also about what alternatives there are, what services might be provided to young people who find themselves in contact with the justice system. Also, I know that jurisdictions that are starting to go down this path are looking at whether there are any things that will stay included in the carve out. It is an important question. There will be further discussions over the winter break that we will be having with other jurisdictions, but we certainly continue, both myself and officers from my office and my department, discussions with different groups around Australia about this issue.

01 June 2022

The Hon. R.A. SIMMS: The bill that I am introducing today seeks to amend the Freedom of Information Act to require the publication of ministerial diaries. This is a really important transparency measure. It happens in Queensland and the ACT, and it is time for it to happen in South Australia. I think the community has a right to know who has the ear of their ministers of government. All that I am proposing is that these official diaries be made publicly available and that they be published periodically online, as occurs in some of those other jurisdictions.

It is well-known in our democracy that sunlight is the best disinfectant. This is a really good way of seeing, with politicians who are performing key decision-making functions, who it is who has their ear, who is seeking to influence them and who is seeking to lobby them. This is information that the public has the right to know.

We know that faith in democracy and democratic institutions is at an all-time low. People are not happy with business as usual and one of the reasons for that, I think, is a lack of faith in our politicians and in our elected representatives. One way we can redress that is to ensure that there is maximum accountability and transparency. This is a simple measure that is being proposed that I think would assist in achieving that.

I hope that all parties will get behind this. I intend to bring it to a vote in coming weeks, and I really do hope that the Labor Party get on board. Now that they are in government this would be a really important reform for them to champion and to demonstrate a real desire to be more accountable and transparent with the South Australian community. Of course, for the opposition, this is an opportunity for them to demonstrate their desire to see government function differently in this state. I hope all parties will get on board and I look forward to further discussions in the weeks ahead.

19 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 regarding children in detention.

The Hon. R.A. SIMMS: In South Australia, young people aged between the ages of 10 and 18 can be remanded in or sentenced to youth detention. In 2021, I spoke in this place about a study from the Australian Institute of Health and Welfare that revealed South Australia detains children at a higher rate than the national average. We also know that First Nations children are overly represented in youth detention and usually account for over half of those detained.

Last year, a report issued by the Guardian for Children and Young People found that children are sometimes held in custody at the City Watch House, which is an adult facility. The report stated that being detained in an adult facility was potentially exposing those with significant trauma backgrounds to unnecessary stress and risk. My question to the minister, therefore, is: how many children are currently in detention in South Australia, and are any of those currently being detained in adult facilities such as the City Watch House?

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 important one. I don't have direct portfolio responsibility for youth detention. That rests with my colleague the Minister for Human Services in another place. It does of course touch quite significantly upon my portfolio areas in the Attorney-General's and justice area and, unfortunately, as the honourable member has outlined, in the Aboriginal affairs area. I will refer those to my colleague in another place and bring back a reply as soon as I can.

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.

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.

01 December 2021

The Hon. R.A. SIMMS:

I rise to speak in relation to the bill requiring the disclosure of ministerial diaries. This bill is a basic transparency measure to allow the proactive disclosure of ministerial diaries. Similar legislation already exists in the ACT, while mechanisms in Queensland and New South Wales require ministers to make copies of their diaries publicly available. This practice of disclosure will help to illuminate lobbying influence, as it did in Queensland last year during their state election.

The function of this bill is straightforward. Every month, a minister would make publicly available all meetings, events and functions which relate to their professional responsibilities. These would be published on the internet.

The bill does not require disclosure of personal meetings and would permit the emission of information deemed by the minister to be contrary to the public interest. I want to assure the ministers in this place that I have no intention of wanting to read their personal diaries or to pry into their personal affairs or personal meetings. Rather, this relates simply to the meetings that relate to their professional responsibilities. The minister would have the power to deem disclosure of a meeting to be contrary to the public interest. This decision would then be subject to review by the Ombudsman or by the SACAT should a member of the public wish to contest that.

In 2019, research from the ANU revealed that the Australian public's trust in politicians has been on a downward trajectory since 2007. A report from Griffith University and Transparency International Australia revealed the number of Australians who view corruption as a big problem as being 66 per cent; so 66 per cent of Australians view corruption as being a big problem. That is two-thirds of the Australian population.

Encouraging greater levels of transparency is an important step in restoring trust. Raising the bar of political transparency has been a long-term project of the Greens. We have been at the forefront of campaigns and advocacy for anticorruption commissions, lobbying reform, caps on political donations and accountability federally, and at a state level. Nobody should be above scrutiny in our democracy. Sunlight is the best disinfectant. We should let the sunlight in.

This measure when used in combination with a lobbyist register, which we have in place in South Australia, will help South Australians see very clearly who is lobbying members of parliament, who is seeking to exert influence over government ministers, and what interest groups do they represent. The public has a right to know who has the ear of those in power and this bill would ensure that that information is freely available to them.

This is not some sort of test dummy that I am proposing. This is an approach that has already been taken in the ACT, and in Queensland and in New South Wales they also have mandated disclosure regimes of this nature. This would really bring South Australia into line. My hope is that, no matter which party is in government from March next year, they will support this sensible reform. If we have the opportunity to sit again in the new year, and if the Liberals do not succeed in their plan to shut down our parliament as they attempted to do during the last sitting period—

The Hon. T.J. Stephens interjecting

The Hon. R.A. SIMMS: I hear the Hon. Terry Stephens laughing. He knows it is true.

The PRESIDENT: The Hon. Terry Stephens is out of order!

The Hon. R.A. SIMMS: We all saw what they tried to do to avoid scrutiny in this place. If they fail in that effort and if we return in the new year, then I do plan to bring this bill to a vote, because it is an important transparency measure and it is one that I think the people of South Australia will support. If I do not have the opportunity to deal with this matter before the election, should I have the honour of being returned to this place, I will certainly move on this again in the new parliament. With that, I conclude my remarks.

18 November 2021

The Hon. R.A. SIMMS: I move to amend proposed new standing order 455B:

After 'Code of Conduct', first appearing, insert 'and should a Member wilfully contravene the Code, the Council may require the Member to apologise; or pay a fine; or may suspend the Member from the service of the Council.'

This is a straightforward inclusion. It is modelled on the code of conduct that operates in the state of Victoria. I understand the points the honourable Treasurer has made in terms of wanting to ensure uniformity between the houses, but at the same time I think we have a responsibility to ensure that any code we put in place is effective and has real teeth.

I think the people of South Australia expect that if you do the wrong thing in a workplace you face consequences, that you face potential sanction or penalty. It would send the wrong message if we supported a range of laudable principles today, but we did not actually stipulate what consequences may flow for members of parliament who do the wrong thing. I think it is appropriate that we put some of those things in the standing orders.

Members may well ask how great would a fine be, or how long would a suspension last. The Victorian legislation provides some clarity on this and so if we were to establish this principle in the parliament today then we could certainly finesse that down the track. I think this is an important principle for us to establish. It is one that the community will expect of us and I am hoping that this chamber will support the amendment being advanced by the Greens.

16 November 2021

The Hon. R.A. SIMMS: The Greens are also supportive of this report and the recommendations. In particular, I want to put on record our support for the code of conduct that has been proposed. I recognise, as the Leader of the Government and the Leader of the Opposition have done, that this has come out of a multiparty committee process, but it should be noted that it was not a committee that involved active participation from the Greens.

It has always been our view that when you are developing a code of conduct it is important to include penalties to ensure that we have something in place that has real teeth, that the community can have faith in, that members of this place can have faith in, and that the staff who work in this building can have faith in.

With all due respect to the Hon. Mr Lucas, I am not sure that this Liberal government has the best track record when it comes to enforcing the behaviour of their members of parliament. This is the party that said, 'Let's not progress any investigation into the alleged conduct of Sam Duluk, let's just let that slide.'

The PRESIDENT: The member should be referred to by his seat, the member for Waite.

The Hon. R.A. SIMMS: I apologise, the member the Waite. 'Let's just let that slide and let's instead exhibit such a failure of leadership that it's over to the member for Waite to announce that he is going to run as an Independent,' because nobody in the Liberal Party hierarchy had the courage to move to disendorse him. So I am not sure that the argument, 'Well, the political parties will take care of their business and the government will discipline people who do the wrong thing,' really carries much weight.

I also refer to the conduct of the former SA minister, Stephan Knoll, who was found to have engaged in misconduct over his interactions with the cemeteries board by the Ombudsman. I am not sure what action has been taken by the government in relation to that behaviour. It is important that there are some clear consequences that flow if people do the wrong thing. That is the case in any other workplace in the state of South Australia and that is what the community expects of this workplace.

In terms of the amendment, I will talk to that later when I have the opportunity to do so, but in general terms what it does is imposes or provides the opportunity for the parliament to impose fines, compel a member to apologise or suspend a member from the service of this council. Members may well ask—and the honourable Treasurer has made this point—how long would the suspension last, what is the fine, and so on? These are matters that are dealt with in the Victorian model from which this language has been drawn, and were this to be implemented we could certainly finesse some of those issues through further changes to the standing orders.

It is not the desire of the Greens to hold up this process in any way. We are absolutely supportive of a code of conduct. It has taken a very long time for us to get here and with that in mind we do think it is appropriate that we ensure that any code of conduct we put in place has real teeth and ensures that there are real consequences that flow to those few bad apples who do the wrong thing.

16 November 2021

The Hon. R.A. SIMMS: The Greens also support this bill, and in so doing I want to commend the Hon. Connie Bonaros for her leadership on this issue in putting forward a private member's bill. It is good to see that the government has taken this up and followed the Hon. Ms Bonaros's lead on this very important issue.

We know, of course, that when it comes to consent to engage in sexual intercourse that it is vital that consent continues throughout sexual intercourse, and that is where the behaviour of stealthing, that is, removing a condom without permission, is really so abhorrent. This is behaviour that is, unfortunately, all too common. I understand that in 2018 a study by Monash University and the Melbourne Sexual Health Centre surveyed around 2,000 people—this is reported in news.com, and I am quoting from that article—and found that one in three women and almost one in five men who have sex with men had experienced stealthing.

The author and journalist Monica Tan has described 'non-consensual condom removal—and again I am quoting from the article—as a sort of rape', in an article for The Guardian published in 2015. 'I call what he did rape like. He called it pushing my boundaries,' she wrote. To make it clear in terms of the impact of this behaviour, survivors have made clear, according to a Yale student Alexander Brodsky who wrote in her paper titled 'Rape adjacent, imagining legal responses to non-consensual condom removal', that was published in the Columbia Journal of Gender and Law:

Survivors make it clear as a result of the removed condoms they experienced fear of sexually transmitted infections and pregnancy and also a less concrete but deeply-felt feeling of violation.

There are lots of places around the world that have taken this matter very seriously and have legislated accordingly. California has moved to address this issue, and also recently in the ACT—and I understand the Victorian parliament is also looking at it. It is very important for us to change our laws here in South Australia to ensure that this is adequately addressed as the crime that it is. With that, I commend the bill.