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.

16 November 2021

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 Aboriginal-led groups.

In a statement released late on Monday, the meeting of attorneys-general agreed to support a development of a 'proposal to increase the minimum age of criminal responsibility from 10 to 12, including with regard to any carve outs, timing and discussion of implementation requirements.' That's a quote from the statement.

My question to the Treasurer is: given advocates have said that raising the age of criminal responsibility to 12 would make little difference to the number of children imprisoned, estimating that it would only reduce the number of under 14s imprisoned from 499 to 456, will the government consider raising the age to 14 instead?

The Hon. R.I. LUCAS (Treasurer): I will refer the honourable member's question to the Attorney-General, but if he is quoting from a statement from all attorneys-general, I assume it includes our Attorney-General. I will, nevertheless, refer the question to the Attorney and bring back a reply.

8 February 2022

Additional answer received

In reply to the Hon. R.A. SIMMS (16 November 2021).

The Hon. R.I. LUCAS (Treasurer): The Attorney-General has advised:

On 12 November 2021, at the Meeting of Attorneys-General, the Marshall Liberal government was pleased to support the motion for state attorneys-general to develop a proposal to increase the minimum age of criminal responsibility from 10 to 12, including with regard to any carve outs, timing and discussion of implementation requirements.

The government has consistently indicated its preference for there to be national consensus on this issue where possible, and so the Marshall Liberal government will continue to work with our state counterparts to consider this issue.

For the year 2020 in South Australia, 489 charges were laid against 78 children aged 10 or 11 and 27 per cent of these children were of Aboriginal or Torres Strait Islander heritage.

The Marshall Liberal government is supportive of the national push to develop a proposal to raise the age of criminal responsibility to 12 years of age.

14 October 2021

The Hon. R.A. SIMMS: I rise to speak in support of the electoral reform bill, with some caveats. I understand the Labor Party will be moving some amendments to address one of the issues the Greens have with this bill, and that is the push to close the rolls early. We worry that would disenfranchise young people, particularly first-time voters for this election, many of whom we know may not necessarily be on the roll.

We are very concerned about that change and what that would mean for voters in this election, and we have made it clear to the government that we will not be supporting legislation that will undermine the capacity of young people to get on the roll and participate in this election.

Another issue we want to address—and I will do so through amendment and also speak to that in the third reading speech—is the right of young people aged 16 and 17 to vote on an optional basis. If you are old enough to drive, if you are old enough to work and pay taxes, then surely you should be old enough to vote, surely you should be given the opportunity to participate in the great contest of ideas that is our democracy. After all, the decisions made by the government impact on the conditions of working people, they impact on their rights just as much as they do on other members of our society.

What the Greens are proposing is the inclusion of a clause that would give young people aged 16 and 17 the opportunity to vote, if they so wish. We think this would also have the added benefit of improving understanding of our political system and better engaging young people in our political system at a time when many people are feeling disenfranchised. Looking at the events that have unfolded in the other place over the last 48 hours, one can certainly understand why young people might feel disenfranchised from politics and disconnected from the Game of Thrones theatre that we see playing out in the other place.

One way we can change that is by giving young people the chance to vote, the opportunity to participate in our political system and have their voice heard. They pay their taxes, they work, they drive; surely they have a right to have a say in the direction this state takes, surely they have a right to determine who should be in government come the 19 March election.

To go to the broad elements of the bill, we are supportive of the broad intention of the bill. We understand that many of these changes have been advocated by the Electoral Commission but, should this bill advance to the next stage, we will be seeking to amend it substantially and will not be supporting it in its current form. With that, I conclude my remarks.