Statutes Amendment (Youths Sentenced as Adults) Bill

Committee Stage

In committee.

Clause 1.

The Hon. M.C. PARNELL: When we debated this bill a bit earlier today, I had hoped that having put a number of cogent matters on the record the government might see reason and might have decided that, given every stakeholder had raised serious objections to the bill, they might pull the bill. Clearly, that has not happened. Here we are at 1.15am and we are going to proceed through committee.

We will see how we go. I have a small number of questions. I do not expect to delay the house long, but of course we have a number of members in this chamber—22 at last count and 21 of them entitled to ask questions—so it may be a long debate if other members have questions. I will start with the obvious one and that is to ask the minister: what consultation did the government undertake before introducing this bill into parliament? Which stakeholders did they talk to, and what other consultation was undertaken?

The Hon. K.J. MAHER: I thank the honourable member for his question. My advice is that at an early stage there was consultation within government. At a later stage, there was consultation with various interested parties, and I am advised they included a range of the parties that the honourable member read views from during the second reading stage.

The Hon. M.C. PARNELL: I thank the minister for his answer. My understanding was that of most of the organisations that have weighed in to this debate, it was not that they were consulted before the bill was introduced into parliament, they have responded to the bill after it was introduced. But I will ask a supplementary question in relation to that. I put five organisations on the record and I read contributions that they had made into Hansard. Has the government responded directly to any of the stakeholders in relation to their concerns?

The Hon. K.J. MAHER: My advice is that there was not a response to individual interested parties.

The Hon. M.C. PARNELL: The minister's answer is that there was not a response to individuals. Is he saying that the only response that has been provided is what has been provided in parliament in this debate? Is that the only response that has been given?

The Hon. K.J. MAHER: I am advised that the comments the Attorney made in the second reading speech and during the debate on this covered a lot of the issues that the government thought needed to be covered.

The Hon. M.C. PARNELL: One of the submissions that I referred to in my second reading contribution was from the Council for the Care of Children. I pointed out in that contribution that the heads of four government departments are part of that council, and on council letterhead the advice was to not support the bill.

I think I named the agencies before. We have the Department for Education and Child Development, the Department for Communities and Social Inclusion, the Aboriginal Affairs and Reconciliation division of the Department of State Development and the Department for Health. My question is: have the CEOs of any of those departments, or have representatives of any of those departments, resiled from the submission that they made as part of the council in relation to this bill?

The Hon. K.J. MAHER: My advice is that we are not aware either way whether they have expressed support for what the council wrote or whether they did not express support for what the council wrote. We are not aware either way.

The Hon. M.C. PARNELL: I take it from the minister's answer that from the government's point of view, the only information that you do have is that the heads of the four most important agencies are opposed to the bill; is that correct?

The Hon. K.J. MAHER: No, that is not what I said and that is not correct.

The Hon. M.C. PARNELL: Does the government accept that the body, the Council for the Care of Children, which includes the executives of those four departments, is against this bill and that the minister said that no-one has resiled from it? None of those agencies have written in saying, 'That was a terrible mistake. The council does not speak for us.' The minister has to acknowledge, I think, that the key agencies of government do not like this bill. Have I got that wrong or is that a clear implication from the fact that the Council for the Care of Children has opposed the bill?

The Hon. K.J. MAHER: I do not think that is a fair characterisation. I can understand the rhetorical point the honourable member is trying to make but I do not have any information as to whether they do or do not resile from what was written, their participation in writing what was written or their participation afterwards. I just do not think it is fair to characterise it in the way the honourable member is doing.

The Hon. M.C. PARNELL: Let me phrase the question another way: who has written to the government saying the bill is a good idea? Which stakeholders have supported the bill other than, perhaps, the police?

The Hon. K.J. MAHER: I am advised that a number of members of the public have written in support of the bill as well as internal stakeholders like, as the honourable member suggested, SAPOL.

The Hon. M.C. PARNELL: It is interesting that these members of the public have written to you. I cannot speak for other members of parliament, but not one of them has written to me saying, 'Please support this bill. It is a wonderful initiative.' I will proceed on a different line of questioning. Can I ask what the government's position is in relation to statutory recognition of the United Nations Convention on the Rights of the Child?

I pointed out earlier that in another bill that is currently on the Notice Paper before this council, the government intended to legislate for the Convention on the Rights of the Child to be formalised as a requirement for administrative decision-makers in South Australia to have to comply with. What is the government's current intention in relation to that convention?

The Hon. K.J. MAHER: I have some advice on that. The Hon. Mark Parnell has cited various submissions and raised various international human rights treaties and resolutions, which it is said that this bill is at odds with or at least undermines in respect of the treatment of young offenders. Many academic theses and probably PhDs have been written about the effect and implications of international law on Australian domestic law. I have information, and I will seek to be as concise as possible in answering the question.

I firstly note in passing that treaties and instruments in relation to the treatment and sentencing of youth offenders are not drafted in absolute terms, as is sometimes presented. These treaties and instruments include recognition of the need to properly protect society, but more fundamentally, it is a well-established principle of Australian law that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into Australian domestic law by statute.

There are numerous statements of the principle to this effect in the judgements of the High Court. In brief, international treaties, as with international agreements or resolutions, are not binding unless expressly incorporated into Australian law. This is also made clear by section 3(1) of the Administrative Decisions (Effect of International Instruments) Act 1995 (South Australian legislation) insofar as administrative decisions and procedures are concerned. Both the state and federal parliaments are entitled to enact legislation that is otherwise within their legislative competence that may have the effect of modifying what is set out in an international treaty agreement or resolution.

The Hon. Mark Parnell has raised the 1995 decision of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh and its implications for this bill. The advice of the government is that that decision concerned the issue of whether the ratification of an international convention created a legitimate expectation that the executive would act in accordance with the terms of the convention even in the absence of legislation to give effect to it, thereby giving an interested person a right to be heard before a decision-maker acted differently.

Not only is this decision not relevant to the context of this bill, the High Court has largely disapproved of the doctrine of legitimate expectation in later decisions, in 2003 in re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam, and in any event section 3(2) of the Administrative Decisions (Effect of International Instruments) Act 1995 (South Australia) makes clear that an unincorporated national instrument does not give rise to any legitimate expectation in respect of executive action.

The Hon. Mark Parnell has otherwise raised the effect of the Administrative Decisions (Effect of International Instruments) Act 1995. In addition to the subsection I have already mentioned, section 3(3) provides that the act does not prevent a decision-maker from having regard to an international instrument if the instrument is relevant to the decision.

The Hon. M.C. PARNELL: I thank the minister for repeating what I said this morning. That was the little lesson we had in international law.

The Hon. K.J. Maher: Do I get a high distinction?

The Hon. M.C. PARNELL: The minister does not get the high distinction. He correctly said that these international treaties do not form part of domestic law unless they are validly incorporated into Australian law. The government at the present moment appears to have an intention to incorporate the treaty into domestic law. It is in a bill before parliament that miraculously has not appeared on the priority list, but it is in a bill before parliament. My question was: what is the government's intention? Is it the government's intention to validly incorporate into Australian law the international treaty?

The Hon. K.J. MAHER: It would not surprise the honourable member that the advisers that we have with us for the purposes of the bill that is confronting this chamber cannot speak for the intention, but certainly I look forward when we return here after March to progressing business that will be before us then.

The Hon. M.C. PARNELL: I sometimes wonder whether we overanalyse these things, but it strikes me that it is incredibly convenient that the Prevention and Early Intervention for the Development and Wellbeing of Children and Young People Bill 2017 has not found its way on to the priority list because that bill, if enacted, would be completely at odds with the bill that we are now debating. They are inconsistent pieces of legislation.

The piece of legislation that I referred to, the prevention and early intervention bill (let's call it that), specifically says that the convention on the rights of the child becomes part of South Australian law to the extent that prescribed service providers will seek to give effect to the rights that are set out in that convention, and the bill before us is trashing the convention. Every one of the commentators, the stakeholders, have said—

The Hon. R.I. Lucas: There's something for everybody, Mark. Just pick the one you like.

The Hon. M.C. PARNELL: —this bill is at odds. The interjection that there is something for everyone—there is a school of thought that sometimes these international treaties are biblical in their nature: if you want to find something to support a position, you will find it in the Bible; if you want to find a contrary position it is in there as well. I do not see them the same way, and certainly the stakeholders do not see it the same way.

The minister clearly cannot answer the question, but I just make the point, whether I am overanalysing it or whether the government has had a lightbulb moment and realised that it was about to do itself in by legislating to validate an international treaty in the same breath as it is legislating to trash that treaty. I will leave that line of questioning there.

Another question is: given that the Northern Territory royal commission findings came out after this bill had been presented to parliament, and given that that is the most recent and the most comprehensive analysis of juvenile justice, what consideration has the government given to the findings and recommendations of that royal commission?

The Hon. K.J. MAHER: My advice is that, as the member correctly states, this was with us and introduced before the findings from the Don Dale royal commission were handed down. Certainly by its very nature what is presented in a bill that was drafted before then does not look at the specific findings, but as with anything that is handed down it certainly helps to inform—and I am sure the royal commission will help inform all states and jurisdictions—future policy in this matter.

The Hon. M.C. PARNELL: I accept what the minister is saying: of course this bill in its original form cannot reflect the findings of a royal commission report that was handed down afterwards but, for goodness sake, there is the opportunity for the government to amend its own bill, as it does in probably 50 per cent of bills, maybe less than that number, but a huge proportion of bills have government amendments.

My question is: why didn't the government see fit to make any changes whatsoever in response to the most comprehensive set of recommendations in relation to juvenile justice in recent times?

The Hon. K.J. MAHER: My advice is that there are many things within the NT royal commission that are familiar, and those issues are addressed in how governments administer these policies. As I have said, whenever there is a major finding handed down, it is common practice for jurisdictions to see how they apply policies, going forward.

The Hon. M.C. PARNELL: I thank the minister for his answer, which I do not find convincing, but I accept what he is saying. On a different tack, if the pattern of child offending and crime that we have seen in the past is repeated in the future, does the government have any idea of how many children might be covered by this legislation? Is there any estimate of the number of offences in an average year, for example? Are there any statistics at all that might shed some light on how many children are being treated as adults and who would be sentenced as adults under this bill?

The Hon. K.J. MAHER: My advice is that this bill will not apply to the vast majority of young offenders, who will continue to be dealt with as young offenders in accordance with the usual established principles of youth sentencing. This bill is confined to the very small group of the most serious young offenders to be dealt with by the Supreme Court or the District Court as adults. I am informed by the Office of Crime Statistics and Research that research identified only 16 young offenders likely to be sentenced as an adult in the District Court or Supreme Court in the three-year period from 2014 to 2016.

For the sake of completeness and because it might pre-empt further questions, I will give all the information I have on this. The research shows that of the 16 identified young offenders, 10 were definitively sentenced as adults. These 10 cases involved murder, criminal neglect, murder and assault, murder and attempted murder, murder and various assaults where a total of eight assault offences or causing harm offences were committed, rape, unlawful sexual intercourse, serious criminal trespass, robbery and kidnapping and, finally, persistent sexual abuse of a child.

In two cases, the young offender was not dealt with as an adult. In two cases, the sentencing remarks indicate that the offender was aged 18 or more at the time of defence. In two cases, relevant sentencing remarks could not be found, and these records were not readily available. So, the impact of the bill will be very limited and confined to the most serious young offenders, who are more likely to pose a real risk to the safety of the community.

The Hon. M.C. PARNELL: I thank the minister for putting those statistics on the record. Is he able to further break those figures down, either in relation to the 16 cases in three years (that was the first figure he gave), or to the 10 he had narrowed it down to? Is the minister able to provide any indication of how many of those were young people who identify as Aboriginal or Indigenous?

The Hon. K.J. MAHER: My advice is that I cannot give these as definitive figures because we are looking at the sentencing remarks. But of the sentencing remarks that I have mentioned before, it appears from those sentencing remarks that two were identified as Aboriginal.

The Hon. M.C. PARNELL: I thank the minister for putting those on the record. I know at this stage that honourable members are keen for a more detailed and more forensic examination of the bill. There is an expectation, perhaps, that all of the propositions and criticisms of the bill in all of the stakeholders' submissions would be put, one by one, to the minister for a response.

My feeling at present is that that is probably not the way to proceed. I am very grateful that the Legislative Council only once in my 12 years has ever pulled the rabbit out of the hat, saying that the honourable member no longer be heard, so I know that I would get the opportunity if I desired it to ask all of those questions, but I think given the lateness of the hour and given the fact that the Liberal Party is now supporting the legislation and that we do have some amendments that need to be processed, I am going to leave my questioning at clause 1 there.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Employment–1]—

Page 3, after line 2—Insert:

(1) Section 3(2a)(a) and (b)—delete paragraphs (a) and (b) and substitute:

regard should be had to the deterrent effect any proposed sanction may have on the youth

This bill intends that section 3 of the Young Offenders Act 1993 has no application in sentencing of a young offender who is being sentenced as an adult offender before a higher court. This amendment intends to make this point clear and dispel any possible doubt. The present section 3(2a) of the Young Offenders Act to be amended by this bill still includes a reference to sentencing by a court on a youth who is being dealt with as an adult; however, the proposed new section 3(4) of the Young Offenders Act 1993 provides that section 3 does not apply to a court imposing sanctions on a youth who is being dealt with as an adult.

There is a tension between the sections 3(2a)(b) and the proposed section 3(4). Section 3(2a)(b) is now unnecessary and should be repealed to avoid any confusion on the part of the sentencing court or elsewhere. That is what this amendment does.

Amendment carried.

The Hon. A.L. McLACHLAN: I move:

Amendment No 2 [McLachlan–1]—

Page 3, line 7 [clause 4, inserted section 3(4)]—After 'reason' insert ', including, for example, the gravity of the illegal conduct'

Amendment carried; clause as amended passed.

Clauses 5 and 6 passed.

Schedule 1.

The Hon. M.C. PARNELL: I just take the opportunity, so that we do not have any surprises very soon. I did mention earlier that I would be dividing. I will now just divide on the third reading; I wanted to put that on the record. I know that it is often common for a rapid-fire progression through, and then we have an argument about whether there were enough voices, so I am putting on the record at this point that it is my intention to divide at the third reading.

Schedule passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (01:45): I move:

That this bill be now read a third time.

Ayes 17

Noes 3

Majority 14