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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2020-12-01 Daily Xml
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Age of Criminal Responsibility

Ms BEDFORD (Florey) (16:23): My question is to the Attorney-General. Can the Attorney-General update the house on how long it will take before the government acts to raise the age of criminal responsibility from 10, which is far below that recommended by the United Nations? With your leave, sir, and that of the house, I will explain.

Leave granted.

Ms BEDFORD: Every year about 600 children between the ages of 10 and 13 are incarcerated in adult prisons. About 60 per cent of these are Indigenous. Reducing the rate of Aboriginal juvenile incarcerations—a priority of the Closing the Gap agreement—can be swiftly implemented were the government to act as the government has acted in the ACT already. They are raising the age to 14.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:23): I thank the member for her question, and perhaps I will inform the house of a number of things. Firstly, we do have children in custody in South Australia. I commend the Minister for Human Services for, in her time, the massive reduction in the number of children in custody. However, what is clear both here in South Australia and in other regions is that there are far too many Indigenous children—so the member is quite right—relative to the number in the population. There are far too many children in custody, particularly Indigenous children.

What is also the case in South Australia, as distinct from the nationwide data that has been provided by the member, is that very rarely in South Australia do we have a child between the ages of 10 and 14 years in custody. I am advised that it may be one or two at any one time, and they may only be there for a few days; nevertheless, that is still a situation where children do commit crime.

If they are above the age of 10 years and mentally competent, then of course they can be culpable for a criminal offence. That is the situation across the country. At the Council of Attorneys-General, this has been on the agenda for about 18 months. From memory, it was raised by Western Australia. My equivalent in Western Australia established a working committee to look at this question of what do we do in relation to the 10 to 14 year olds. Should they be criminally sanctioned and culpable in relation to criminal conduct? Should it change to 12 or 14?

Should we reverse the doli incapax, as it's called? Basically, it is a presumption that, in cases between 10 and 14, not only do you have to prove that they committed the offence and that they had the mental capacity to do so but you also have to establish—essentially, if I abbreviate it down—the child's understanding that they knew what they did was wrong. They have to know the difference between right and wrong. So there is quite a high threshold for children to be prosecuted in South Australia. That is the situation at the moment.

The working committee has been due to report for some time. The expectation is that the next CAG will be in March next year, and we have asked Western Australia to report whatever work it has done in that area. In the meantime, in South Australia we have been looking at this very carefully ourselves. One of the things that occurred before the election in Queensland was the announcement by Premier Palaszczuk that she would not, in her government, change the law; that is, children 10 and above will be legally responsible. She ruled out there being any change.

The ACT have previously indicated that they are interested. A number of other jurisdictions have not made any express position as to what they would consider. So we are yet to see whether there can be any national agreement in relation to where we go with this area of law reform. If they don't come to any resolution, I think it is something that we need to have a formal position on in any event.

I think the key question for South Australia, given that we don't have the same level of incarceration of children in this area, is that, whatever we do in relation to children's incarceration, we have to think about what else we can support children with at that age to ensure that they rehabilitate. Sometimes children kill their parent. Sometimes they do terrible crimes at a young age. Sadly, that is the situation that we have, but we do need to think about what other services might best be employed for them.

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