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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-11-29 Daily Xml
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Bills

Statutes Amendment (Youths Sentenced as Adults) Bill

Second Reading

Debate resumed.

The Hon. M.C. PARNELL (12:29): Thank you, and I welcome them as well. They are hearing an important debate on a matter of public interest.

The next submission I wish to refer to is that of the Law Society of South Australia. The Law Society, back on 10 August, put in a very detailed submission, the bottom line of which is that this parliament should oppose the legislation. The Law Society points out, as do all of the submissions, that the bill does not take into account a child's cognitive development in seeking to treat children the same as adults: it ignores that fundamental principle.

The submission talks about how the bill contravenes well-established international legal principles. They refer to the Convention on the Rights of the Child, but they refer to other international instruments as well: the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, the so-called Beijing rules, and they explain in their submission how this bill offends those international conventions and treaties that Australia has signed. The society in their submission say that they consider this bill to be:

…another piecemeal legislative removal of the principles of 'best interests' of the child. It was removed from the Children's Protection Act 1993 by the introduction of the Child and Young People (Safety) Act 2017, and will now be overridden in the Young Offenders Act.

The submission also goes on to say that the bill is unlikely to achieve its desired effect. The society says that it is aware of research that shows that the threat of adult criminal sanctions has no effect on the levels of serious juvenile crime, and that juveniles who receive harsher penalties when tried as adults tend to reoffend sooner after their release and more often than those dealt with by the juvenile system. Similarly, they refer to another study which found that juveniles given more severe penalties were more likely to reoffend than those given less severe penalties, even after controlling for a range of other factors.

So, if the object of this legislation is to keep or to make the community safer, then all of the evidence put forward to us by experts tells us that it is not going to happen, it is not going to work, it is the wrong approach if what you are trying to do is make the community safer. The Law Society says:

Locking up young people for longer is more likely to impede the prospect of rehabilitation upon release from detention. Thus the proposed legislative amendment runs contrary to the aim of decreasing recidivism and increasing community protection.

The society then on goes on for several pages to talk about the need for rehabilitation for young offenders, again a common theme in all of the submissions that we as members of parliament have received.

I will not read all that material, but I will go to some of the concluding remarks the Law Society made. They actually revisited the Cappo years, Monsignor David Cappo, and referred to reports that he had done, which again run contrary to this legislation. By way of conclusion, the Law Society said:

By way of a summary the main problem with the Bill is not that it wishes to have, as a relevant consideration, the safety of the community but rather that it seeks to mandate the safety of the community as outweighing all other considerations where, for the reasons set out in this submission there are a number of other very important considerations in the case of youths that need to be taken into account. In order to achieve what is in the best interests of the child and the community.

For the reasons noted above, the Society does not support the Bill in its current form.

So, there you have it: a now third stakeholder group singing from the same hymn sheet that this is a bad bill and urging the parliament not to support it.

The next submission I will refer to is that of the Aboriginal Legal Rights Movement. As members know, because we have discussed it in this chamber many, many times, the Aboriginal community in this state is vastly and grossly over-represented in the criminal justice system, whether that be in relation to youth or in relation to adult incarceration.

The Aboriginal Legal Rights Movement quite rightly points out that it is the Aboriginal community that will suffer the most if this legislation goes through. The ALRM, again right at the front of their submission, points out that Australia is a signatory to the United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, as well as the UN Standard Minimum Rules for the Administration of Juvenile Justice. They have actually identified three international treaties that are breached by this legislation. They point out that the United Nations has consistently criticised Australia for failing to bring Australia's treatment of children in the criminal justice system in line with international standards. The ALRM draws particular attention to United Nations' criticism of the state of Queensland, because they treat 17 year olds as adults.

There is a whole range of quotes that the ALRM provides to us from various United Nations reports. They also refer to the Royal Commission into Aboriginal Deaths in Custody, because whilst that report may have been many years ago, the recommendations have still not all been implemented and they still have things to say to us today.

The ALRM knows very clearly who is going to suffer the most from this legislation, and it will be members of South Australia's Aboriginal community. I will read the concluding sentences of the ALRM submission. It states:

We reiterate our concerns that Aboriginal youth in South Australia are grossly overrepresented in youth detention and incarceration and we greatly fear that this provision if enacted will increase the period of incarceration which individual Aboriginal youths will suffer.

What is clear is that Aboriginal youths require more and better projects programs and services to assist in their rehabilitation and in particular their cultural rehabilitation into a law-abiding life. ALRM calls upon the government to make that a stronger priority.

They urge us not to proceed with this bill. The submission is signed by Cheryl Axleby, CEO, Aboriginal Legal Rights Movement.

The final stakeholder submission that I will refer to is that from the Guardian for Children and Young People. We were presented with two submissions from the guardian. I could read out the detailed 36-page submission, complete with footnotes, that was provided to all members some time ago—the most comprehensive submission that you are going to see on why this is a bad law and why we need to treat youth offending differently to adult offending.

Fortunately, the guardian has provided members, just in recent days, with a more concise two-page submission, which still covers the main territory but brings us up to date. The reason I say we need to be brought up to date is that unless members have been asleep, they would have noticed that the royal commission in the Northern Territory has handed down its findings in relation to juvenile justice in that state. All of us have seen on television footage of the Don Dale Youth Detention Centre, and all of us have been appalled at the conduct that went on in that facility. I will put on the record not the 36 pages from the guardian but the two pages. The guardian says:

The new Northern Territory Royal Commission report comes at an important time in this debate. It reminds us of essential justice considerations. We cannot ignore the relevance of the report and its recommendations, many of which are applicable to youth justice systems throughout Australia.

The Commissioners found that the Northern Territory 'detention system failed to comply with basic binding human rights standards in the treatment of children and young people'. It also found that their child protection system similarly 'failed to provide the support needed to some children in care to assist them to avoid pathways likely to lead into the youth justice system'. How would South Australia's systems stack up? These are salutary messages for those about to vote on this particular legislation next week.

I believe the Royal Commissioners have crucial insights that are relevant for our state, especially observations such as—

'Perpetuating a failed system that hardens young people, does not reduce reoffending and fails to rehabilitate young lives and set them on a new course, is a step backwards.'

And another quote from the royal commission:

'The fundamental principle underpinning youth justice and detention is that children and young people should not be managed in the same way as adults…children and young people often come into conflict with the law because they lack maturity, make poor and risky decisions, and are highly susceptible to negative influences, particularly peer pressure.'

The Commission found that 'many of the children who come into contact with the youth justice and child protection systems do so as a result of the underlying drivers of socioeconomic inequality including racism, remoteness, poverty, housing issues, poor physical and mental health and disabilities. Many of these drivers also apply to South Australia.

I am also very concerned about the safety of the community. Although the primary rationale for this legislation is 'community safety', the evidence is clear that it will not work to make our community safer. More detention and longer jail terms are shown to lead to more criminalisation of individuals, not less.

This bill may keep some young offenders 'off the streets' for longer periods but they will ultimately return to live among us. The Attorney-General has proposed that considerations of 'care, guidance and correction' and rehabilitation be abandoned for some young offenders. And yet it is the careful work that can be done with young offenders, directed to 'care, guidance and correction' (which many of them will never have experienced in the course of their traumatic and chaotic lives) which is most likely to make a difference to their futures. It stands to reason – and the evidence bears this out – that locking up young offenders for protracted periods of time and seeking only to punish them, will ultimately result in more hardened and proficient offenders.

If the measures in this bill are designed to deliver deterrence, then, again, the evidence is clear. We know that young people don't think like adults. (That's exactly the reason given for not allowing them to vote or drink until they are 18.) Young people, with their immature brains, are more likely to be impulsive and reckless, and less able to think realistically about consequences. And the trauma that many young offenders have experienced in their short lives – through no fault of their own – further damages the developing brain and makes it even harder to think logically, reasonably and thoughtfully. Acknowledging trauma and responding to it on the basis of what actually works, rather than just punishing people for longer periods of time, is more likely to result in a change of behaviour, which will lead to less offending and a safer community.

South Australia's Parliament can be justifiably proud of many recent legislative initiatives in the youth justice sphere, such as the Youth Justice Administration Act 2016, which recognises the evidence about what works. The current bill is directly inconsistent with that Act and clearly breaches national and international standards about how children and young people should be treated. It will be extremely unfortunate if the constructive changes embodied in recent legislation are diminished by the passage of the Statutes Amendment (Youths Sentenced as Adults) Bill 2017.

This bill was introduced in a context of several high-profile matters involving very serious offences committed by children or young people, with tragic consequences. These events deeply affected the families and friends of the victims of those offences and the broader community. At times of distress and heightened emotion, there is an understandable human need to react decisively. There is also a very human impulse to seek punishment and even retribution. It is at just such times that responsible and considered responses are called for. Responses that will be constructive, not merely reactive.

As legislators, I urge you to withstand the temptation to vote for what may appear 'popular' and instead take up the challenge to make law that will actually enhance community safety, based on evidence as to what is most likely to have beneficial consequences for the community.

The letter is signed by Penny Wright, Guardian for Children and Young People and Training Centre Visitor. So, there are some submissions. They are all saying similar things in slightly different ways. One point I said I would come back to, and I will do this now, is that they all made reference to the international Convention on the Rights of the Child. This is a United Nations convention that Australia has signed, and it includes article 40:

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

That is what we signed up for as a nation, and this bill completely disregards our most fundamental obligations under this convention. I need to explore exactly why that is the case so when members vote on this bill, they know exactly what they are doing.

For students of international law who are paying attention to this issue, the first reaction most of them would have if they understand anything about international law is, 'It is an international convention, it is not a South Australian law, so how does that article apply?' People might point out that the general legal principle is that international treaties do not become part of domestic law until they are specifically incorporated through legislation. That is how it has worked for many years.

For people who only want a bare pass for their international law studies, that is as far as they will get. They will leave it at that. But if you want to get a credit for international law, you will need to go a bit further. If you want to get a credit, you have to also be aware of the High Court's case in Teoh from the 1990s. In that case, the High Court of Australia declared that all Australian citizens had a legitimate expectation that our administrative decision-makers, including departments, including ministers, would have regard to international treaties when they made decisions.

That was a very sensible decision because when you think about it, the alternative is that our governments over many years are a complete bunch of hypocrites, who are happy to sign international treaties but have no intention whatsoever of applying them domestically. The High Court was not prepared to wear that hypocrisy. They said, 'Of course citizens have a legitimate expectation that treaties mean something, that we sign them with a view to them meaning something.' So, well done to the High Court, and if you refer to that in your international law essay, you will get a credit.

If you are not happy with a pass or a credit, if you want to get a distinction, you need to go one step further. You need to note that not only do international treaties not normally apply, not only did the High Court say, 'They really should,' but what we have in South Australia is the unique situation where we have a specific piece of legislation that is designed to undermine the High Court's decision in Teoh; that is, the Administrative Decisions (Effect of International Instruments) Act 1995. The operative provision is very short and I will read it. It is section 3:

(1) An international instrument (even though binding in international law on Australia) affects administrative decisions and procedures under the law of the State only to the extent the instrument has the force of domestic law under an Act of the Parliament of the Commonwealth or the State.

(2) It follows that an international instrument that does not have the force of domestic law under an Act of the Parliament of the Commonwealth or the State cannot give rise to any legitimate expectation that—

(a) administrative decisions will conform with the terms of the instrument; or

(b) an opportunity will be given to present a case against a proposed administrative decision that is contrary to the terms of the instrument.

(3) However, this Act does not prevent a decision-maker from having regard to an international instrument if the instrument is relevant to the decision.

That might sound complicated, but the student looking for a distinction in international law will understand it. I will paraphrase it for the benefit of honourable members. What it says is: nobody can hold the government to account for not complying with international treaties. It is up to the individual decision-maker to decide for themselves whether or not to have regard to a treaty or a convention when making decisions. The treaty or convention is in effect an optional extra that we can abide by if it suits us and disregard if it is convenient to do so.

Not everyone has been here as long as I have. The Hon. Mr Hanson will not recall this as he was not here, but other members will recall that I have, twice in the last 12 years, sought to repeal this act—twice. We are the only state that has this act that thumbs its nose at the High Court, that thumbs its nose at international treaties, but whenever I have introduced it into parliament, both the old parties have rejected it. Why? Because they are hypocrites. They love the warm inner glow that comes from signing international treaties, but they are horrified at the idea that we might actually have to do anything in return.

My first attempt to repeal this law was in 2007 and the trigger was the parlous state of the River Murray and the Lower Lakes. The Lower Lakes are listed internationally as wetlands of international significance under the Ramsar Convention, which Australia has signed and which obliges us to look after them. So, building a weir at Wellington would have been in direct contravention of our international obligations to look after those wetlands, but the South Australian Administrative Decisions (Effect of International Instruments) Act let our state off the hook.

My second attempt to repeal this law was in 2009. This is of direct relevance to the bill because, back on 17 June 2009, I referred the council to the 2005-06 annual report of the then guardian for children and young people, Pam Simmons. She referred to the Magill Youth Training Centre and said it was:

…a cheerless institution which inhibits proper care and behaviour change. The facility falls well below national standards for both youth and adult detention facilities,—

and this is the killer—

contravenes UN Rules for the Protection of Juveniles Deprived of their Liberty, and is potentially in violation of Article 40 of the UN Convention on the Rights of the Child.

This reference to a potential breach on the Convention on the Rights of the Child cannot be news to members. We have been debating it in this parliament over the last eight or so years, and Pam Simmons, as the then guardian, quoted article 40 (I will not read it again). Really, that proves there is very little new under the sun.

What I said eight years ago in response to that was that in parliament what we have to remember, regarding these young people, is that they have, in the main, long lives ahead of them. Those lives could be constructive, worthwhile and happy or they could be antisocial, deprived and criminal. The philosophy of pack 'em, rack 'em and stack 'em has no role in juvenile detention unless we are determined to make adult offenders out of child offenders. What does this bill do? It makes adult offenders out of child offenders. There is nothing new under the sun, the parliament has heard this before.

Going back to my analogy of the student who wants to get a pass, wants to get a credit, wants to get a distinction, there is one other class of student, and that is the dux. This is a student who is going to get the high distinction, who is going to top their class. To get that top mark they need to do one more thing. This hypothetical student is a devoted reader of Hansard; she knows what is going on because she reads the Legislative Council Notice Paper. This high level student is alert to hypocrisy.

In researching their essay on this topic the high distinction student will have come across the Prevention and Early Intervention for the Development and Wellbeing of Children and Young People Bill 2017. Unfortunately, that is not a bill we are going to have time to debate in this session of parliament. It is on our Notice Paper but it looks as if we are not having the optional sitting week and we are not going to have time to debate it.

However, it is instructive, and it is instructive as much for what is in it as for the reasons we are not going to debate it. Under Part 2—Purposes of this Act, clause 7—Effect of Part, the part sets out 'the Parliament of South Australia's commitment to the United Nations Convention on the Rights of the Child'. It says it in black and white: the parliament is committed to this convention. In clause 8 it goes on to provide:

The Parliament of South Australia recognises the United Nations Convention on the Rights of the Child and prescribed service providers will seek to give effect to the rights set out from time to time in the convention.

The prescribed service providers include the Department for Communities and Social Inclusion. So, the department responsible for these young offenders in this bill, if this bill were to pass, would be legally obliged to have regard to and to give effect to the United Nations Convention on the Rights of the Child.

Yet, we have not got to this bill yet; it is on the Notice Paper but we are not going to get to it. I am not normally a suspicious person, but why is the government not going to progress that bill? I will tell the chamber why: it is because the government has realised that it is a complete embarrassment to them. It is an embarrassment because the parliament is about to throw that international treaty out of the window and it would make no sense for the parliament, in the next breath, to debate a bill that gives legal effect to that very same treaty.

What a bunch of hypocrites we have here. The government would rather pass bills that trash the Convention on the Rights of the Child than get around to passing a bill that says, 'We support the Convention on the Rights of the Child and we give effect to its provisions.' This is hypocrisy of the very worst kind.

The Greens will be strenuously opposing this bill. We will be forensically pulling it apart in committee. It will take time and I would urge the government to just let this bill go. If they happen to be successful after the next election, they can look at it again and bring it back. If the alternative government had some real ticker, they would not have caved in as they have to this pathetic law and order debate—who can be the toughest.

The shadow attorney-general would have resisted the cheap shots directed at her by the Attorney-General. They would have read all the submissions which unanimously told us that this was bad law and that we should vote against it. I would urge the Liberals to reconsider as well. I really hope that this bill goes no further than the second reading today. The Greens will be opposing it at the second reading and we will be dividing on it and I expect we will be dividing through the committee stage as well.

The Hon. A.L. McLACHLAN (12:55): I rise to speak to the Statutes Amendment (Youths Sentenced as Adults) Bill. I speak on behalf of the Liberal Party and indicate that we will support the second reading. The bill amends the Young Offenders Act 1993, the Criminal Law (Sentencing) Act 1998 and the Sentencing Act 2017. This bill represents the government's response to the tragic events that took place earlier this year when a young mother was killed in a motor vehicle accident that involved youths driving a stolen vehicle at high speed.

One of the young men involved is 18 years old, while the others are aged between 13 and 17. Those involved are still being dealt with by the courts. However, at the time, the Attorney-General indicated that new laws allowing juveniles to be sentenced as adults should be in force in time to deal with those responsible for this horrific crash. That brings us to the bill presently before honourable members.

Currently, section 16 of the Young Offenders Act enables the Director of Public Prosecutions to lay charges against a youth in a higher court, rather than the Youth Court, if the youth is charged with a major indictable offence and if the Director of Public Prosecutions is of the opinion that the youth poses an appreciable risk to the safety of the community and should therefore be dealt with as an adult.

The current law, however, sets out separate statutory objects and policies to apply when sentencing young offenders, as distinct from the principles that apply when sentencing adults. This approach was developed to recognise the significant difference in youths' cognitive development, their lower capacity for self-regulation and that they are far more susceptible to peer pressure, amongst other things. The relevant provisions in section 3 stipulate that the following principles apply:

(2a) In imposing sanctions on a youth for illegal conduct—

(a) regard should be had to the deterrent effect any proposed sanction may have on the youth; and

(b) if the sanctions are imposed by a court on a youth who is being dealt with as an adult (whether because the youth's conduct is part of a pattern of repeated illegal conduct or for some other reason), regard should be had to—

(i) the deterrent effect any proposed sanction may have on other youths; and

(ii) the balance to be achieved between—

(A) the protection of the community; and

(B) the need to rehabilitate the youth.

The bill before the chamber displaces these principles in situations where a court is sentencing a youth who is being dealt with as an adult. This will occur if their conduct is part of a pattern of repeated illegal conduct or for some other reason.

The implications of the bill are that any young offender sentenced in a higher court will be punished according to the same sentencing principles that apply to adult offenders. This results in community safety being the primary consideration as opposed to rehabilitation. This aligns with the recently passed Sentencing Bill 2017, which is not yet in operation but which sets out that the primary purpose of sentencing a defendant is to protect the safety of the community.

I note that the bill does not amend section 29 of the Young Offenders Act. This means that when a youth is committed to the Supreme Court or District Court for trial or to be sentenced, the court can do one of the following:

deal with the youth as an adult;

make any order in relation to sentencing the youth that may be made by the Youth Court; or

remand the youth to the Youth Court for sentencing.

It is only in circumstances where a decision is made to deal with the youth as an adult in a higher court that the new provisions in the bill apply. The court still retains the discretion to refer the youth back to the Youth Court for sentencing, in which case the usual sentencing principles regarding youths will apply. The Liberal Party takes comfort from the fact that this discretion remains and has not been removed by the government's bill. In essence, it will ensure that only appropriate cases are dealt with by higher courts in circumstances such as the defendant's antecedents justify this course of action.

The Liberal Party acknowledges the many submissions both to the Attorney and the Liberal Party. It has given careful consideration to those. As the Hon. Mr Parnell said, the Liberal Party has had an ongoing dialogue with the Attorney, as you would expect. I will speak more on that during the committee stage in relation to the amendments that the Liberal Party is putting forward, which I understand the government accepts.

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) (13:00): I thank honourable members for their contribution. There are some amendments, as has been indicated, in the committee stage. I acknowledge it has been foreshadowed that this may not be a quick or simple committee stage, and I will foreshadow that it will be the intention of the government, given that, to allow members to fully agitate and prosecute what they want to do and to return to at least this bill after private members' business tonight to make sure there is enough time to do that.

Bill read a second time.

Sitting suspended from 13:02 to 14:17.

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