Minimum Age of Criminal Responsibility

Adjourned debate on motion of Hon. R.A. Simms:

That this council—

1. Notes that the government has undertaken consultation on a discussion paper titled 'Minimum age of criminal responsibility—alternative diversion model' released in January 2024.

2. Recognises that the consultation period closed on 24 March 2024.

3. Acknowledges:

(a) the continued advocacy of organisations such as Change the Record, SACOSS, the Justice Reform Initiative and the Guardian for Children and Young People in calling for the age of criminal responsibility to be raised to at least 14 years without exceptions;

(b) that an alternative diversion model is vital to the success of raising the age of criminal responsibility; and

(c) that the public are entitled to understand the views around the proposed alternative diversion model.

4. Calls on the Malinauskas government to publicly release the submissions to the consultation on alternative diversion models for raising the age of criminal responsibility.

(Continued from 16 May 2024.)

The Hon. C. BONAROS (01:13): I rise to speak in support of the Hon. Rob Simms' motion and to echo his sentiments and that of others of the importance of transparency in government consultations. It has been five months since the consultation closed on the alternative diversion model discussion paper which, as we heard, addresses the critical issue of providing a network of safe places for children under the age of criminal responsibility who engage in harmful behaviours. These safe places are necessary when returning these children to a safe home with a parent or guardian is not possible.

I understand several stakeholders, including the Law Society of South Australia and SACOSS, have submitted their insights and views. Many have provided invaluable transparency by promptly publishing their submissions on their respective websites. Moving forward, it would be most helpful for all of us, and indeed for the public, to see those submissions and have them made publicly available, with the consent, of course, of their authors. I appreciate there may be submissions from individuals who do not wish for their personal stories to be made public. We have dealt with that issue before and we can deal with that issue again in this instance.

On the matter of the age of criminal responsibility—I am sure we could talk a very long time on this—my position on this has been placed on the record publicly previously. I support raising the age. Like I have said previously, and I will keep saying it on this front, what we are doing is not working. If it were working we would not be having these discussions. But these issues go hand in hand. We have to explore effective compassionate approaches to dealing with kids in crisis, youth in crisis.

If you think youth crime is going to be dealt with effectively in the absence of genuine reforms in this area, then think again. We have done that. We have been doing that forever and a day and it has not worked. We hear a lot here in South Australia and across the nation about youth crime—the prevalence of youth crime, the increasing rates of youth crime—but we have not changed anything significantly in terms of what we are doing to address youth crime.

We cannot maintain the status quo and expect things to improve or to change. These alternative diversion models, increasing the age, are all aimed at that very outcome and are hugely critical and important. I support this motion on the basis that we need to move forward. This is a good first step for all of us and is very much in the public interest in terms of having some firsthand knowledge of what those insights reflect, in terms of the alternative diversion model submissions and the insights they provide.

With those words, I commend the Hon. Rob Simms for moving this motion. I genuinely and sincerely hope that it has the right effect in terms of having that material publicly available for consideration by all of us and the general public at large.

The Hon. S.L. GAME (01:17): I rise briefly to offer support for the Hon. Robert Simms' motion calling on the Malinauskas government to publicly release the submissions on the minimum age of criminal responsibility alternative diversion model, which closed on 24 March 2024. I also state that I will be supporting the amendments from my Liberal colleagues.

While the primary focus of the proposed reforms is the raising of the age of criminal responsibility from 10 to 12 years of age, the discussion paper includes significant changes to the future operation of the youth justice system. Consequently, the submissions of key stakeholders have significant value for this chamber as members prepare to cast their vote and propose reforms to the criminal justice system in South Australia.

I recognise that the care and welfare of our most vulnerable children has become increasingly complex, especially in cases where children are at risk of causing harm to both themselves and others in the community. I have attended the Kurlana Tapa Youth Justice Centre, and I understand that I am one of the only members, other than the minister, to have done so.

I support the honourable member's call for the Malinauskas government to release these submissions. I look forward to hearing from a wide range of stakeholders, including advocates, youth justice officers, Youth Court staff, as well as police officers who work on the frontline and deal with these confronting issues every day. This chamber needs these submissions to fully appreciate the depth and complexity associated with developing an appropriate and considered response to the criminal behaviour of children in our state.

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (01:18): I rise to address the ongoing debate concerning the minimum age of criminal responsibility here in South Australia. The Labor government initiated a public consultation process on the minimum age of criminal responsibility. Consultation opened in January 2024 and closed at the end of March 2024. Five months have passed and we have not seen any substantial movement. This delay is concerning, and you cannot help but wonder if there is a significant disagreement in the Labor Party on this issue. If I were to hazard a guess, I suspect the Labor left is supportive of raising the age of criminal responsibility and the Labor right is less enthusiastic about the idea.

The current state of play in South Australia is that the minimum age of criminal responsibility is established under section 5 of the Young Offenders Act 1993, and it currently stands at 10 years old. This means that children under the age of 10 cannot be held criminally responsible or charged with any criminal offence. For children aged between 10 and 14, the common law presumption of doli incapax applies, meaning they are presumed incapable of forming the necessary intent to commit a crime unless proven otherwise by the prosecution. However, should the prosecution prove this, then a charge can be and sometimes is laid.

Some jurisdictions in Australia have codified this presumption into their legislation. However, South Australia relies on the common law formulation of the presumption requiring the prosecution to prove that a child understood their actions were wrong in a criminal sense.

Until 2023, the minimal age of criminal responsibility was set at 10 years across all Australian jurisdictions, and thus proposed changes are a relatively recent phenomena. In December 2023, the Age of Criminal Responsibility Working Group publicly released a report outlining the minimum services and supports required to assist children who would be diverted from the criminal justice system under this new higher minimum age. Shortly prior to this, the Northern Territory government raised the minimum age of criminal responsibility to 12 years with no exceptions, in August 2023.

However, obviously since that time the Labor government has had a resounding defeat by the CLP (Country Liberal Party) at last weekend's election, where the CLP campaigned on a law and order platform and a policy of returning the minimum age of criminal responsibility to 10 years old. I am sure it is not lost on anyone in this chamber that the CLP won the election in what some commentators would term a landslide.

The National Working Group referred to earlier, under the Council of the Attorneys-General, released a draft report in December 2022. It outlined that there is a direct link between criminality and deep-rooted social and economic disadvantages. The key risk factors for youth criminality include poverty, homelessness, experience of abuse and neglect, mental illness, intellectual disabilities and having a parent with a criminal record. Children who enter the criminal justice system, the disproportionate number of whom are Indigenous male, often carry a heavy burden of these challenges and vulnerabilities.

The doli incapax presumption does not always effectively protect vulnerable children. A justice reinvestment approach could yield longer term savings while better supporting at-risk children. Significantly, few children between the ages of 10 and 11 are involved in the justice system.

It is important to note that the number of children and young people under 14 entering the youth justice system in South Australia is relatively low. This is at least partly because the former Marshall Liberal government had already taken steps to address the over-representation of Aboriginal youth in our justice system through the Child Diversion Program (CDP). This program effectively diverts Aboriginal children aged 10 to 13 from high-security custodial facilities, offering instead culturally aware and supervised short-term accommodation. A dedicated family liaison worker supports these children and their families, helping to identify needs and build on existing strengths.

The doctrine of individual responsibility is of course a core policy platform that has long been held by the Liberal Party, and that core view will rightly form our position on this and related matters in any attempt to alter the status quo.

While I am on my feet, I move to amend the motion as follows:

Paragraph 2—Leave out '24' and insert '25'

Paragraph 3—After subparagraph (c) leave out 'and' and insert new subparagraph as follows:

(d) the failure of the Malinauskas government to address the youth crime crisis; and

Paragraph 4—Insert new subparagraph (b) as follows:

(b) Listen to the views of police and frontline responders on raising the age of criminal responsibility

I propose these amendments to the motion to acknowledge the government's failure to act on the youth crime crisis and to highlight the importance of the views of police and frontline responders in any minimum age of criminal responsibility reform.

The Hon. R.B. MARTIN (01:25): I rise today on behalf of the government on the motion of the Hon. Robert Simms, and I indicate that I will move an amendment which will remove paragraph 4.

On 24 January 2024 the government released a discussion paper for consultation on an alternative diversion model for children if the minimum age of criminal responsibility were raised to 12. This followed many years of work through the Standing Council of Attorneys-General under both Liberal and Labor governments at state and federal levels.

The Malinauskas government does not have a policy position to raise the age of criminal responsibility, but we are carefully considering the issue in the context of the long-running national work. We have been very clear that community safety is the most important consideration in any such reform, and that remains the case.

The government received significant interest from the community on the discussion paper. At no time was it stated to stakeholders that all submissions would be publicly released, and it is not the usual practice of government to release submissions on draft legislation except where required by freedom of information and other requirements.

It is important that stakeholders and other interested parties remain confident in providing frank feedback to the government, and therefore it is not our intention to depart from the standard practice and release submissions made on this topic. For this reason the government seeks to amend the motion to strike out paragraph 4. If this amendment is not successful the government will not be able to support the motion.

I would like to briefly address some of the amendments proposed by the Hon. Nicola Centofanti. This government has not taken a backward step when it comes to law and order in South Australia. We are firmly committed to taking all appropriate actions to ensure that South Australians feel safe and that perpetrators are held to account, and we have consistently demonstrated that commitment.

We have laws before the parliament to create a standalone offence of recruiting a child to commit crime, the toughest laws of their kind anywhere in the country. We are progressing the toughest laws in the country to deal with serious repeat child sex offenders to have them indefinitely detained unless they can convince a court that they are willing and able to control their sexual urges. I am advised that we have also toughened driving laws, created a criminal offence for concealing human remains, increased penalties for child sex offences, strengthened anti-bikie laws, granted expanded police powers in the CBD and much more.

What is more, South Australia has the most operational sworn police per capita of any state in Australia, with approximately 238 officers per 100,000 people, and our most recent state budget made significant investment in our police to enable their good work to continue. The results have started to reflect this work and these investments, with the 2022-23 Report on Government Services indicating that South Australia has the lowest rate of recidivist offending in the country.

We will always work collaboratively with police and prosecutors to make sure our laws are fit for purpose. The government will be opposing the Hon. Ms Centofanti's paragraph 3 subparagraph (d) amendment. We stand proudly before our record on law and order. As indicated earlier, I move to amend the motion as follows:

Paragraph 3—After subparagraph (c) leave out 'and'

Leave out Paragraph 4

The Hon. R.A. SIMMS (01:28): I thank all members for their contributions: the Hon. Nicola Centofanti, the Hon. Sarah Game, the Hon. Connie Bonaros and the Hon. Reggie Martin. I will indicate that the Greens are not supportive of any of the amendments that have been proposed. We do not support the Liberal Party amendment. There is no youth crime crisis. That is a moral panic, a beat-up from conservative politicians, so I do not support putting that in the motion.

In terms of the government amendments, really what the government is doing is just removing the verb from the motion, actually asking the government to do something. I do not support that. To the point that the Hon. Reggie Martin made that stakeholders may have made submissions on the basis of anonymity, I would certainly have no difficulty with the government checking with those who have made a submission around whether or not they are happy to have their submission released.

I do think that there is a pattern of behaviour emerging with the Malinauskas government whereby it conducts these consultation pieces, invites stakeholders to make submissions and then the submissions sort of disappear into the ether somewhere and no-one ever knows what happens to the feedback that they have provided.

This was an issue with the review of the Residential Tenancies Act where the Greens had called for some time for the government to make the submissions public and it is an issue with respect to this proposal as well. People have made a submission in good faith and if, as members of parliament, we are going to consider the options that are on the table, then we need to actually know what the views are of the community.

Whilst my views on raising the age are well known, my motion does not commit the upper house one way or the other; it is simply asking for that information to be put on the public record.

The PRESIDENT: The question is that the amendment moved by the Hon. N.J. Centofanti to paragraph 2 be agreed to.

Question resolved in the negative.

The PRESIDENT: The question is that the amendment moved by the Hon. N.J. Centofanti to paragraph 3 be agreed to.

Question resolved in the negative.

The PRESIDENT: The question is that the amendment moved by the Hon. N.J. Centofanti to paragraph 4 be agreed to.

Question resolved in the negative.

The PRESIDENT: The question is that paragraph 4 as proposed to be struck out by the Hon. R.B. Martin stand as part of the motion. If you are voting with the Hon. R.B. Martin you will vote no. If you are not voting with the Hon. R.B. Martin you will vote yes.

Question agreed to.

The PRESIDENT: The question is that the motion moved by the Hon. R.A. Simms be agreed to.

Question agreed to; motion carried.