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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-11-29 Daily Xml
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Statutes Amendment (Youths Sentenced as Adults) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 31 October 2017.)

The Hon. M.C. PARNELL (12:17): This is a bad bill and the Greens will be opposing it.

Members interjecting:

The Hon. M.C. PARNELL: I am being goaded to end my contribution there, but for reasons that will become apparent I will have a lot more to say about this bill. Until very recently, it was clear that this bill did not enjoy majority support in this chamber, but the looming election seems to have spooked the Liberal Party. If you look at what the Liberal Party has said up until now, it was generally principled and it was respectful of the overwhelming weight of the submissions that we have received, every one of which has urged us to oppose this bill.

The shadow attorney-general in another place said she opposed the bill, but she then suffered under a hail of blows from the Attorney-General, in the media, as the regular pre-election 'tough on crime' debate came to the fore. It is unedifying, it is disingenuous and it is opportunistic, but apparently it works. Normally we find that the shadow attorney-general does not cave in lightly to these attacks, but clearly the looming election got the better of the Liberal Party, and the Liberal Party have backflipped. They are not my words. They are the words that we read in The Advertiser this morning on page 11 in an article by Adam Langenberg, which starts with the paragraph:

Serious juvenile offenders will be sentenced as adults, after the Liberals backflipped on their objection to the move.

The Opposition’s support means legislation will be passed before the March election.

So, from a position of clear opposition to the bill, we now find that the Liberals have filed amendments, which do not actually fix the principal wrongs that are committed by this bill but presumably do enough to get the Attorney-General off their backs. The Attorney has them running scared, and the Liberals have capitulated. In fact, they are not just running scared, they are running stark naked because even the fig leaf of respectability that they once had on this bill has been lost in the race to the bottom of the law and order debate.

As I said before, every single submission that I have received has urged the Greens to oppose this bill. There is not a single email in my inbox, not a single submission was received urging the Greens to support the bill. These submissions opposing the bill were not solicited by the Attorney-General because he did not have the courtesy to consult with key stakeholders. He did not bother consulting with them; nevertheless, a range of stakeholders have gone to a lot of trouble to tell the Legislative Council that we should reject this ill-conceived legislation.

If the Liberal Party had maintained its original principled position that held apparently until this week, then I would not need to put on the record the entirety of the case opposing this legislation. Now that the Liberals have capitulated, I find that I do need to, because they will not, because every bit of material they have before them from stakeholders tells them to oppose the bill, so they are not going to put the material on the record, so I need to. The Greens, in relation to this bill, are prepared to step up, and we will play the role that normally a proper opposition should play in testing legislation; that is, exploring the detail, looking at the unintended consequences and, ultimately, voting this bill down as it deserves.

I am not going to read onto the record every word that has been written by every stakeholder on this bill because that would take, on my estimate, two or three hours, but I do need to put a deal of this material on the agenda. I need to explain why it is that every stakeholder opposes this bill.

I might start with the contribution of the Council for the Care of Children. I think that is an important stakeholder to start with because this body comprises a number of very senior government representatives. There are heads of government departments who are on the Council for the Care of Children. People might say, 'Just because they are on that council doesn't mean that they agree with every word that the council says,' but I can tell you that not one of them has written to us saying that they demur or object to the submission that the Council for the Care of Children has put to us.

The submission I refer to is dated 1 November 2017, and in the very first paragraph it states, 'The council urges you not to support the bill'—not to support the bill. The submission goes through a great deal of detail, most of which I think could be summarised as: why do we not continue to recognise the fact that children are different, that their brains develop differently and that their capacity to make good judgements is different to adults? That is why, in fact, we have special laws for children. I am paraphrasing a very lengthy submission, but ultimately that is what they are saying.

They also refer to the fact that there are systemic and root causes of offending that this bill does absolutely nothing to address. The submission talks about the phenomena that we all know of adolescent risk-taking. Some of it will be criminal in nature and some of it will be kids just being stupid. We know that about children, which is why we have special laws to deal with children when they come in to the criminal justice system.

The submission talks about rehabilitation prospects, none of which are advanced by the provisions in the bill. The submission refers to the doctrine or the concept of proportionality. They refer to a number of South Australian Supreme Court cases, and they offer the observation that the existing section 3 of the Young Offenders Act provides a sensible balance between the protection of the community and the needs of a child or young person who has offended.

The proposed amendment in the bill before us would require that existing fine balance to be destroyed in contravention of well-founded national and international legal principles and human rights instruments. I will come back later in my contribution to talk about those international obligations because they go to the heart of what is wrong with this legislation. The Council for the Care of Children posed the question:

Will the amendment achieve the stated objective of making the community safer?

That is the fundamental question; it is the whole reason the government has introduced this bill. This is the council's response to that question:

When a child or young person offends is sentenced to detention, he or she will eventually have to be released back into society. Ultimately the best protection for the community would be afforded by the rehabilitation of a child or young person while in detention and, at the same time, targeting the root causes of offending to prevent (re)offending. Rehabilitation would more likely occur as a result of proactive, intensive and sustained case management in a youth training centre and/or a step-up/step-down facility…

Which they note does not currently exist in South Australia. The council also refers, at a more practical level, if you like, to the incredibly high cost of incarceration, the fact that locking a young person up until, for example, their mid-30s would, in effect, condemn them to a life of criminality. It is going to cost us a fortune as a community.

This submission was under the hand of Simon Schrapel, who is the chair of the Council for the Care of Children. It is worth pointing out, as I said earlier, who is on this council. We have the head of the Department for Education and Child Development; we have the head of the Department for Communities and Social Inclusion; we have the head of Aboriginal affairs and reconciliation; we also have the head of the Department for Health. My understanding is that these CEOs send a representative to represent them at these meetings, but I make the point again: not once have any of these people written to us saying that Simon Schrapel has got it wrong and that the views of the Council for the Care of Children do not reflect their views. So, their silence, I think, is damning. Here we have key leaders in key government agencies whose organisation has written us a letter saying, 'Oppose the bill.' That is the first of the submissions.

The second submission I would like to refer to is that of the Youth Affairs Council of South Australia. I contacted them some time ago and asked them what they thought of this bill, to which their response was, 'What bill?' Clearly, the government had not done anything like the consultation job that it should have done. Again, there is a theme that will develop through these submissions, but the Youth Affairs Council basically has pointed out the obvious:

…this Bill fails to acknowledge the development stages of children and young people and the social and systemic drivers of offending while simultaneously stripping the vital rehabilitative object of the Young Offenders Act 1993.

The submission is short but comprehensive. It refers to article No. 40 of the Convention on the Rights of the Child, which Australia has signed and which I will refer to at some length later on. The submission, in conclusion, basically relies on that international convention as a very good reason why laws such as that proposed in this bill are bad laws and should be opposed. I thank Anne Bainbridge of the Youth Affairs Council of South Australia for getting a submission to me and to other members of parliament. I am disappointed that the YACSA submission has been completely disregarded by the government.

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