30 August 2023

The Hon. R.A. SIMMS (15:10): I seek leave to make a brief explanation before addressing a question without notice to the Attorney-General on the topic of young offenders.

Leave granted.

The Hon. R.A. SIMMS: Yesterday, the Attorney-General tabled the Young Offenders Regulations 2023. Under section 9 of these regulations, a young offender who is detained within 40 kilometres of Adelaide's General Post Office:

…may be detained in a police prison or approved police station, watch-house or lock-up in accordance with those sections.

That applies for as long as it is reasonably practicable.

In a 2022 report on South Australia's progress on recommendations made by the United Nations Committee on the Rights of the Child, the commissioner for young people noted on page 15 that children were arrested and detained in SA police cells or watch houses at least 2,030 times between 2020 and 2021. Of these separate admissions, 43 per cent of these young people were First Nations young people.

My question to the Attorney-General is: why does the government think it is appropriate to detain children as young as 10 in police stations, watch houses or lock-ups for indefinite periods? When will the government move to raise the age of criminal responsibility to 14 years?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:12): I thank the honourable member for his question and his passionate advocacy in the area of raising the minimum age of criminal responsibility in particular. As I have outlined in this place and in public before, we are undertaking work to look at what it would look like if we did raise the minimum age of criminal responsibility. It is not a policy we have committed to, but there is certainly a large body of work that we are undertaking in South Australia, as there is being undertaken nationally by all states. The national process commenced under the former government, who committed to looking at what it might look like and the evidence for raising the minimum age of criminal responsibility.

Some of the areas that continue to be looked at in South Australia are areas that you might expect; that is, if you raise the age from 10 to 12, as I think the NT and the ACT have done, and I think Victoria made a recent announcement about raising the age, and I think Tasmania have made an announcement about raising the minimum age of detention, which is not the minimum age of criminal responsibility, but in some areas it has a similar effect in terms of children who are actually detained in custody facilities. One of the main areas is: what comes instead of the criminal justice system—those other sorts of interventions, be they therapeutic interventions, family supports or other interventions?

I have to say, I have been surprised at just the complexities and the amount of work that has gone into this already. There is another matter that touches on what the honourable member raised, in addition to what the other interventions are in a young person's life that might even be more successful in making the community safer by having a lower chance of reoffending. But then, what are the immediate powers of, particularly, police officers in terms of being able to intervene immediately?

There are very successful processes in place in terms of family conferencing that the police use. The immediate police powers to intervene in situations, particularly dangerous situations, is another element of the work that's ongoing. The honourable member raises one of them, and that is detention in police cells, and it is acknowledged that that is often a suboptimal experience for children, but that is certainly part of the work that we are undertaking as we look at this issue holistically.

The Hon. R.A. SIMMS (15:14): Supplementary: when will the parliament receive an update on that work that is being undertaken and, in particular, does that work involve consideration of the report of the United Nations Committee on the Rights of the Child?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:15): I thank the honourable member for his question. As much as I would love to give the honourable member a date, that it will happen on this day of this month, I don't have a date. It is important work that we want to do thoroughly. From the outset, the overriding factor about these changes is what makes the community safer. We are looking internationally, too, at what the results have been in terms of the reduction in reoffending and the effects on community safety. We will do the work as thoroughly as possible, and I know the honourable member will look forward to any announcement we have in this area.

The Hon. R.A. SIMMS (15:15): Supplementary: again, has that work been informed by the United Nations Committee on the Rights of the Child report?

The PRESIDENT: I am not sure that that report of the United Nations Committee on the Rights of the Child—I didn't hear that in the original answer. However, Attorney, if you would like to answer the question you can, otherwise we will move on.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:16): I am most helpful and I am happy to do so, sir. As I said, certainly the work has looked at international experiences and looked at a whole range of different jurisdictions that have moved this way, and are looking at it as well.

3 May 2023

No. 271 

In reply to the The Hon. R.A. SIMMS (3 May 2023).

1. How many children between the ages of 10-14 have been detained in the justice system in the last 12 months?

2. Of those children, how many are between the ages of 10-12?

3. What is the government doing to progress the Optional Protocol to the (United Nations) Convention Against Torture (OPCAT) which prevents the torture, illegal treatment, and deprivation of human rights for detained people?

4. How much funding is being provided by the South Australian government to implement OPCAT?

5. Is the government providing extra financial and human resources to the Office of the Guardian for Children and Young People to provide oversight for children and young people to the international standard required by OPCAT?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector): 
I have been advised:

1. Between 10 May 2022 and 9 May 2023, a total of 41 children aged from 10 years to 13 years and 11 months were admitted to Kurlana Tapa Youth Justice Centre.

Cumulatively, these children spent a total of 275 nights in custody along with two children who were admitted to Kurlana Tapa but did not remain overnight.

2. Between 10 May 2022 and 9 May 2023, eight children aged from 10 years to 11 years and 11 months were admitted to Kurlana Tapa Youth Justice Centre. These children spent a cumulative 13 nights in custody over the past year.

Table 1—Admission of children aged 10 to 13 years to Kurlana Tapa Youth Justice Centre between 10 May 2022 and 9 May 2023

Please note the sum of the 'number of children' column is 45 but the total number of individual children comes to 41. This is because four children had subsequent admissions after their birthdays.

3. As I have indicated previously in this place, South Australia, like other jurisdictions, stands prepared to implement OPCAT when the commonwealth government provides proper and ongoing funding to do so. The South Australian government continues to work closely with the commonwealth government to progress the implementation of OPCAT and issues concerning funding. OPCAT remains a priority item on the Standing Council of Attorneys-General (SCAG) meeting agenda for 2023. At the 28 April 2023 SCAG meeting, all participants affirmed their commitment to continue to work together towards full implementation of OPCAT obligations. I welcome this commitment from the commonwealth government and look forward to continuing to progress efforts to support the full implementation of OPCAT.

4. The South Australian government's position is that funding to implement OPCAT is a matter for the commonwealth government. The South Australian government continues to work closely with the commonwealth government to resolve issues relating to funding for the National Preventive Mechanisms (NPMs) to ensure that they are able to effectively carry out their functions and powers under OPCAT.

5. The Training Centre Visitor (currently Ms Shona Reid who also holds the office of Guardian for Children and Young People) was nominated in January 2022 by the former government to be the NPM for training centres when OPCAT is implemented. The implementation of OPCAT, including the passage of legislation needed to confer NPM functions on the Training Centre Visitor, remains subject to resolution of issues related to federal funding.

8 March 2023

The Hon. R.A. SIMMS: I move:

That this council—

1. Acknowledges that 13-17 February 2023 marked End Youth Suicide Week;

2. Notes that one in four young Australians experience a mental health issue each year;

3. Notes that suicide is the leading cause of death for young people aged 14 to 25 and that approximately nine young people die by suicide every day; and

4. Recognises the valuable work of the Youth Insearch Foundation to reduce the incidence of crime, violence, drug and alcohol abuse, self-harm, and suicide in young people.

This motion seeks to acknowledge that 13 to 17 February 2023 was End Youth Suicide Week, and notes that one in four young Australians experience a mental health issue every year. It notes that suicide is the leading cause of death for young people aged 14 to 25, and that approximately nine young people die by suicide every day. It recognises the valuable work of the Youth Insearch Foundation to reduce the incidence of crime, violence, drug and alcohol abuse, self-harm and suicide in young people.

Many young people in Australia today are impacted by the problems stemming from poverty, broken and dysfunctional homes, domestic violence, sexual, physical and emotional abuse, death and grief, substance addiction and other traumatic events. As a consequence, many of these young people can struggle with education, employment, homelessness, and mental illness and find themselves turning to self-harm, suicidal ideation, drug and alcohol abuse, crime and violence.

But, also, we know that many young people take their own lives despite receiving significant support from family and friends, and that is a truly shocking and devastating thing for our community. Sadly, in Australia, suicide is the leading cause of death among those aged 14 to 25, and over one in three deaths of young people aged 14 to 25 are by suicide. In fact, approximately nine young people die by suicide in Australia every day. What is most heartbreaking is that this number continues to grow year by year.

I know, within my own social circle, I have seen the terrible effects that can flow from death by suicide, the terrible effect that has for family and friends left behind. Youth suicide in Australia disproportionately affects Indigenous, Aboriginal and Torres Strait Islander peoples, the LGBTIQ+ community, and young people living in rural and remote areas. These are truly awful statistics.

Fortunately, there are organisations, like Youth Insearch, that shine a light on this issue and provide early intervention and support. Established in 1985, Youth Insearch is an independent not-for-profit peer-led youth intervention organisation dedicated to supporting at-risk youth overcome trauma and mental health issues, protecting them against suicide, and drug and alcohol abuse.

Youth Insearch runs one of the most successful youth intervention programs in our country. The program was developed together with young people back in 1985. The Youth Insearch program is an award-winning, proven, comprehensive early intervention program that consists of counselling, support, mentoring and empowerment for at-risk young people who are aged 14 to 20 and is delivered through weekend workshops, support groups, peer support, leadership and individual care.

The program works by allowing young people to confront and deal with the reality of the pain in their lives. By drawing on the resources of other young people and their experiences, the organisation is able to address the real problems or the underlying issues that many of these young people may face. About 30 per cent of young people who have attended the Youth Insearch program are Aboriginal and Torres Strait Islander and 10 per cent are culturally and linguistically diverse.

I understand that Youth Insearch leaders come from these diverse backgrounds and are all trained in cultural sensitivity as part of their work. In its 37 years of operation, Insearch has helped almost 32,000 young people rebuild their lives, and it has assisted a thousand young people across our country each year.

An independent external review commissioned by the New South Wales government found positive outcomes across multiple behaviour and wellbeing measures and found that the program had a sustained positive impact on these issues over time. Some of the reported positive outcomes included less trouble with police and crime, higher self-esteem, improved family relationships, reduced suicidal thoughts and attempts, reduced alcohol and drug use, and better attendance and attitude towards education.

Youth Insearch run an End Youth Suicide Week, which is a campaign to encourage the community and young people to defy the stigma associated with mental health and to have supportive conversations about suicide with their friends, families and communities. End Youth Suicide Week this year ran from Monday 13 to Friday 17 February.

I commend Youth Insearch for their success in combating youth suicide and for moving young people from trauma to triumph, and I congratulate them on a successful End Youth Suicide Week. I do hope that the week has led people to have conversations within their communities and improved awareness around suicide and has led to young people at risk being connected to the support that they need. With that, I commend the motion.

17 November 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: On 14 November of this year, the ABC's Four Corners program reported on restraining practices used in youth detention facilities in Western Australia and the Northern Territory. The ABC has reported that young people in those places are being locked in their cells for unacceptably long periods of time using the folding up position, where they are restrained by being folded into a position that has been linked to risks of suffocation.

On 4 November, the South Australian Training Centre Visitor report was tabled. It revealed that 80 per cent of day shifts were unstaffed at the Kurlana Tapa youth detention centre, and children were given fast food in an effort to placate them. The report also stated that microwave meals were often served when they were not properly thawed.

A coalition of South Australian organisations has called for the age of criminal responsibility to be raised to 14 in South Australia. These organisations include the Public Health Association of Australia, the Australian Health Promotion Association, the Rights Resource Network, Amnesty International Australia, the Aboriginal Legal Rights Movement, the Commissioner for Children and Young People, the South Australian Aboriginal Community Controlled Organisation Network, SACOSS and Change the Record.

My question to the Attorney-General is: is the Attorney-General concerned about the welfare of children in detention here in South Australia, and what steps are being taken by the Malinauskas government to protect children who are caught up in the criminal justice system?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector): I thank the honourable member for his question and his interest in this area and acknowledge that he has brought this matter to the chamber a number of times, including in legislation that he has drafted and put before us. A basic answer to the question is: I am concerned about the welfare of children, whether that is in relation to contact with the criminal justice system, youth detention or more generally.

Although the youth detention system falls under the ministerial responsibility of my colleague the Minister for Human Services, the member for Hurtle Vale, the Hon. Nat Cook, it certainly touches upon my portfolios in relation to broader justice issues as Attorney-General, and also given the dramatic over-representation of Aboriginal children in the youth detention centre, but also coming into contact with all facets of the criminal justice system in my role as Minister for Aboriginal Affairs.

The organisations that the honourable member talked about—Change the Record, SACOSS, SAACCON, ALRM, Amnesty and many others—have raised concerns not just in South Australia but around Australia about the minimum age of criminal detention, and I certainly thank them for their advocacy. I have met if not with all of them certainly with most of them, not just in my time as minister but in my time as shadow minister in relation to this area.

As I have outlined to this chamber before, it is a matter we are looking at in South Australia. We haven't made a commitment in relation to what we may or may not do in relation to the minimum age of criminal responsibility, but it is something we are looking at. We are looking at what other jurisdictions have done in relation to this area—countries that are similar to Australia, such as New Zealand, Scotland, Ireland—and are also looking at some of the proposals in other jurisdictions in Australia: the ACT, the NT and Tasmania, who are not raising the age of criminal responsibility but a minimum age for detention. It is not exactly the same solution but certainly one that has the potential to make an impact. That work is continuing.

We are evaluating what the other jurisdictions have done, bearing in mind the sort of prism that we are looking at this through is looking for ways, at the end of the day, to make the community safer by looking to see if there are therapeutic interventions that may be more successful than contact with the criminal justice system in terms of helping young children and their families who would otherwise come into contact with the criminal justice system.

Reply received 7 February 2023:

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector): The Minister for Human Services has advised:

The Department of Human Services continues to implement a range of measures to improve outcomes for children and young people at Kurlana Tapa. Some of these measures include:

Improving feedback and complaints processes to increase children and young people's access to mechanisms to raise complaints and to improve resolution of complaints.

Rolling out staff body-worn video cameras to improve child safety and staff transparency and accountability.

Improving the collection, analysis, sharing and reporting of data and information about children and young people in custody.

Delivering a capital works program that includes a 12-bed accommodation unit to better support children with complex needs, expanding the education and visitor centre spaces and an eight-bed police custody unit.

Introducing the Enhanced Support Team, a team of allied health professionals who support Kurlana Tapa youth workers to therapeutically respond to children and young people displaying complex behaviours.

Implementing the Child Diversion Program to divert Aboriginal children and young people from entering custodial youth justice.

6th September 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 the cost of keeping children in detention.

Leave granted.

The Hon. R.A. SIMMS: In the New South Wales budget estimates last month it was revealed that the cost of holding youths in detention has risen to $1,956 per child per day. That is a total of $713,940 per child per year. In South Australia, it has been reported in the media that 43 children aged between 10 and 13 have been incarcerated in 2020-21. My question to the Attorney-General is: how much is it currently costing the South Australian government to hold children under the age of 14 in youth detention?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector): I thank the honourable member for his question. I have some statistics here, but if there need to be more I can refer that to the minister for youth detention. I am advised, though, that there were some 50 individual children aged 10 to 13 out of a total of 300 individuals for the 2021-22 year in youth detention at various times during that year. That is the total number over the course of the year.

My rough estimate is that there are approximately 30 to 40 total residents on any given day, and approximately, on average, around 15 to 20 per cent are aged between 10 and 13. I am advised that the average cost of housing a youth in detention is about $3,827 a day.

The Hon. R.A. SIMMS: Supplementary: the $3,080 figure that the Attorney-General has referred to, is that per child?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector): The advice I have is $3,827 per child per day. It is not clear to me, with the information I have, if that is all children or those 10 to 13, but I will find that out as quickly as I can. I won't bring back a reply but will let the honourable member know.

The Hon. R.A. SIMMS: Further supplementary: does the minister consider that that more than $3,000 per child per day would be better spent on early intervention programs to reduce the harm of sending children to prison?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector): I agree that we need to do more in early intervention and look at ways to reduce the number of not just children but people who come into contact with the justice system. I haven't got the stat, but it is something like 50 per cent of those between 10 and 13 in our youth detention system are Aboriginal children. That is of great concern when Aboriginal people make up around 2 per cent of the South Australian population.

It is certainly something we are looking at. We have a commitment that later this year we will be starting on a commission into Aboriginal incarceration rates, primarily focused on adult incarceration, but certainly we will have a look at youth detention of Aboriginal children. Anything we can do to stop particularly children having contact with the justice system is a good thing.

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.

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.

In reply to the Hon. R.A. SIMMS (6th September 2022)

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector): The Minister for Human Services has advised:

On 19 May 2022, 28 children were in custody at the Kurlana Tapa Youth Justice Centre.

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.

18 November 2021

The Hon. R.A. SIMMS: I move:

Amendment No 1 [Simms–1]—

• Page 3, after line 11 [clause 4, before subclause (1)]—Insert:
  • (a1) Section 4(1), definition of elector—delete '18 years' and substitute '16 years'

This is an amendment that seeks to change the definition of elector from the age of 18 to 16. Currently, as we know, voters go on the roll at the age of 18 in South Australia. This would make voting optional for people who are 16 and 17 in state elections. We in the Greens think that is entirely appropriate. If someone is old enough to pay taxes, old enough to work, old enough to drive, then they should be old enough to vote and have a say on the direction of our state.

We also face some big challenges at the moment. Those challenges are multigenerational. Issues like climate change—the impact of an issue like that will be felt across the generations. We know that young people, particularly of school age, have been leading the charge for climate action. They should have a say on the direction of their state and their country, and the best way we can do that is by giving them an opportunity to vote. We also see this as being an exciting way to engage people more in civics and improve understanding of our politics as well.