GREENS BILL: Raising the age of criminal responsibility

Today Mark introduced a Greens' Bill to raise the age of criminal responsibility from 10 to 14 years.


In September of last year, Dujuan, a 12 year old from Arrernte and Garrwa country and the star of the documentary In My Blood It Runs, delivered a speech to the United Nations Human Rights Council in which he called for Australian governments to raise the age of criminal responsibility. Dujuan, who narrowly escaped being imprisoned himself, a fate suffered by so many young Indigenous Australians like him, said:

I came here to speak to you because the Australian government is not listening.

Whether or not Australian governments are still not listening, we may know next week, as the attorneys-general from around the country gather to consider whether to raise the age of criminal responsibility from 10 to 14 years.

Listening to the voices of youth is a powerful experience. One young Indigenous lad I listened to yesterday at a conference organised by the Public Interest Advocacy Centre described his experiences in youth detention, including degrading strip searches—up to a dozen a day—and the sheer drudgery of pointless incarceration with little to do and few helpful services. He talked about one little boy, a 10 year old, who was not even tall enough to reach up to the counter that he was asked to put something on.

Regardless of the outcome of the discussion between the attorneys-general, the Greens believe that it is well past time for the South Australian government and the South Australian parliament to listen to Dujuan and to the growing chorus of voices calling for our state to get behind the international campaign to raise the age of criminal responsibility.

Governments around the world, including in our state, have not been listening to the neuroscientists who say that a child's brain is yet to fully develop between the ages of 10 and 14. In fact, the human brain continues to develop well into our 20s. Governments have not been listening to the criminologists, who's data suggests that when 10 to 14-year old children—and they are children—are incarcerated they are three times more likely to become long-term offenders. On the other hand, the findings of the recent Northern Territory royal commission into youth detention found that the vast majority of children who are dealt with outside the formal criminal justice system do not reoffend.

Governments have not even been listening to the economists, who normally would have a reserved seat at any government policy table. According to PricewaterhouseCoopers, in a report from 2017 by their Indigenous consulting firm, they found that a nationwide raising of the age of criminal responsibility would save upwards of $10 billion a year if custodial sentences were replaced by therapy and support. The royal commission in the Northern Territory I mentioned before also recommend raising the age.

So, despite all the evidence, why has this reform not yet been implemented? According to satirical cartoonist First Dog on the Moon this week:

The United Nations wants us to stop locking up children, but we enjoy it too much.

That might be cynical, but there is something in that. Our instinctual human impulses do not always deliver the most effective solutions, and we are seeing that play out across the world as we speak. For example, social distancing, wearing masks and sanitising your hands every time you enter a building goes against our customary way of living, yet the science, the data, shows that it stops the spread of COVID-19, so we do it.

The incarceration of children in Australia is a hidden plague upon this land. Whilst the instinctual and politically expedient response to kids behaving badly may currently be, 'Lock them up. That will show them right from wrong', the data just does not back this up. Just like COVID-19, the plague of childhood incarceration disproportionately causes harm to the disadvantaged, to racial minorities, the poor and those with disabilities. I want to explore some of these points in more detail.

In relation to neuroscience, Dujuan is obviously not the only person who is speaking inconvenient truths at the United Nations. We have all seen the power of climate activist Greta Thunberg, who's example led to protests in every corner of the planet, including on the steps outside the building where we are today. In response to Greta, our Prime Minister Scott Morrison said, 'Let our children be children.' So he accepts the dichotomy between childhood and adulthood.

The notion that children are not adults pervades our regulatory framework. A person cannot vote, buy alcohol or go to a nightclub until they are 18 years old. There are age restrictions on when you can drive a car, engage in consensual sexual intercourse and, as former President of the Law Council of Australia, Arthur Moses, noted:

There is something wrong when children can't join Facebook until 13, but in Australia can be prosecuted for a criminal offence at 10. It does not make our country safe, but exacerbates the problem.

What is wrong is that the law has not caught up with the advances in neuroscience. Through functional magnetic imaging we can now see a child's brain and how it tangibly differs from an adult's brain. We do not need to use legal reasoning and abstract tests to see what a defendant does or does not understand; we can look at the MRI.

As the Ohio State Journal of Criminal Law states, 'Since its advent, magnetic imaging has shown that the adolescent brain is structurally different to that of a mature adult, and particularly in the area devoted to impulse control and decision-making, inclined to risk taking.' A more succinct way of describing this has been that children get the accelerator before they get the brake.

If we extend the driving analogy even further, a 10-year-old child may be able to intellectually comprehend that speed limits exist and they may be able to understand that it is wrong to break them, but they may also lack the impulse control to adhere to those rules—to foresee the consequences of breaking them, to silence the potential reward of getting somewhere quicker or the pleasure of travelling fast—by assessing that the risks outweigh that reward. This is why we do not let children get behind the wheel. They will not be capable of controlling themselves in that circumstance.

The Royal Australasian College of Physicians put out a media release last year. RACP spokesperson and paediatrician Dr Mick Creati said:

Children experiencing significant neurological development can't be held responsible in the same way as adults—it's not just unjust, it is not supported by evidence.

A study published last year of 99 children in detention in Western Australia found that 89% had at least one severe neurodevelopmental impairment.

Holding a child criminally responsible under these circumstances is highly ethically problematic.

The fact that this issue is disproportionately affecting Indigenous young people is of additional and serious concern.

If we then remove these children from families, schools and positive influence it becomes even more damaging—locking in a vicious cycle that is very hard to undo.

At this point, I think it is useful to provide a summary of the law that exists in South Australia. I am grateful in this regard to University of South Australia legal academic Sarah Moulds, who wrote about this in an opinion piece in InDaily on Human Rights Day, 10 December, last year. Like me, she had been to a special screening of the film In My Blood It Runs, which was organised jointly by the Guardian and the Commissioner for Children and Young People. It featured the young Indigenous boy Dujuan, whose quote I used at the start of this contribution. I should say to members that the film is still available on ABC iview but only until 4 August. I would urge you, if you have not seen it, to watch it now.

As Sarah Moulds explained to me, the current South Australian approach to the age of criminality is actually a hybrid model. In legislation, we have section 5 of the Young Offenders Act 1993, which provides a bottom floor by stipulating that a person under the age of 10 years cannot commit an offence. Then, the common law provides a rebuttable presumption that children aged between 10 and 14 lack the capacity to be criminally responsible for their acts. This presumption is called doli incapax (it is Latin) and it can be rebutted if the prosecution can show that the child possessed the necessary mental element of the offence and knew that what they were doing was wrong according to the ordinary principles of reasonable people.

Whilst technically this means that safeguards do exist for children aged 10 to 14 in South Australia, in reality case law suggests that the difficulty in proving a child's capacity at the time of the alleged offence has resulted in questionable legal reasoning, highly prejudicial material being included in proceedings and a practical reversal of the onus of proof. The case law was summarised in 2015 by Justice Peek in the case of Johnson. The test focuses not on the defendant's impulse control and decision-making capacity but rather on whether they have been exposed to information, such as school rules, that alerts them to the wrongness of their behaviour.

This is bizarre, and it is also a logical fallacy. You can expose a five-year-old child to algebra, but that does not mean they will understand it or know what to do with it. The sad reality is that the burden of proof is not on the prosecution to prove that the child understood the wrongness and consequences of their action but rather it is on the defendant to prove that they did not. This requires access to expensive psychological evaluation that, given the demographics where childhood offending is most prevalent, is not within the means of the average defendant's family.

Let's now look at the demographics and the context within which these young 'offenders' live. Put quite simply, the criminalisation of 10-year-old to 14-year-old children is the criminalisation of poverty, race, disability and disadvantage. According to President of the Law Council of Australia, Pauline Wright:

The Australian Institute of Criminology…released a report in December 2019 highlighting the over-representation of children known to the child protection system in juvenile justice—this is known as the 'care to custody pipeline'.

Our most vulnerable children, children in state care, sometimes never make it out of state custody. In 2017, the Queensland Family and Child Commission found a:

…direct correlation between criminality and entrenched social and economic disadvantage. The major risk factors for youth criminality include poverty, homelessness, abuse and neglect, mental illness, intellectual impairment and having one or more parents with a criminal record.

Whilst the star of In My Blood It Runs, Dujuan, escaped incarceration, that was largely due to the support of his extended family. But 64 per cent of 10 to 13-year-old prisoners in Australia between 2018 and 2019 were Indigenous. That is, two-thirds were Indigenous.

Whilst films such as In My Blood It Runs have raised awareness, these issues are not new because back in 2011 the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs produced a report entitled 'Doing time—Time for doing—Indigenous youth in the criminal justice system'. What this report showed was that police are more likely to arrest Aboriginal children and to lay formal charges against them rather than issuing a warning by helping them find a different track. Aboriginal kids are more likely to be locked up in prison as they wait for their day in court instead of being released on bail. That is, they are on remand, not found guilty of anything.

In South Australia, according to statistics released this month by the Australian Institute of Health and Welfare, the rate of imprisonment of Aboriginal and Torres Strait Islander young people was approximately 20 times the rate for non-Aboriginal and Torres Strait Islander young people. According to the Law Society of South Australia, Indigenous children comprise only 4.5 per cent of children in this state but 62 per cent of children detained in the Adelaide Youth Training Centre.

So to make it really clear, they are less than one-twentieth of the relevant population but nearly two-thirds of those incarcerated. It is no surprise then that parallels have been drawn with the stolen generation. Let's be really clear. We are still taking children away from their parents. We are still stealing generations. I have no doubt that in the future we will need to apologise again for this international atrocity, for this abdication of our responsibilities under international law.

What has international law got to do with this? This is about the criminal justice system in our state. Let me explain. Australia is a signatory to the Convention on the Rights of the Child, and this convention states in article 40(3) that state parties shall seek to promote the establishment of laws and, in particular:

(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.

Last year, the Convention on the Rights of the Child committee in a general comment encouraged state parties to the convention to increase their minimum age to 'at least 14 years of age' and they commended state parties that have a higher minimum age such as 15 or even 16.

Our law on paper should protect children under the age of 14 but, as I have explained, it does not. Due to loopholes and interpretation, the effective age of criminal responsibility in this state and in this country remains 10—it is not 14—and that is still well short of the level that the CRC commends as a goal. Six years in the life of a child is a very long time indeed.

But the world is moving in response to the campaign. Countries that have already raised the age of criminal responsibility to 14 include China, Russia, Germany, Spain, Sierra Leone, Azerbaijan, Cambodia, Rwanda and others. In Australia, at a federal level, my Greens colleague in the Senate Rachel Siewert has been working on this issue for many years. In July last year, she moved a motion with the support of the ALP's Pat Dodson to urgently raise the age of criminal responsibility from 10 to 14. This was voted down by the Liberal government.

Attorney-General Christian Porter stated that he believes the current system works 'quite well'. On all of the evidence I find it impossible to understand how he reaches that conclusion. Centre Alliance's Rebekha Sharkie has also supported the campaign with a private member's bill. That was introduced into the federal parliament last October.

In South Australia, our Attorney-General, Vickie Chapman, has stated that she is open to reform, but she prefers a national response and is awaiting the report from the Council of Attorneys-General. As I said before, I understand that this could happen as early as next week, and I look forward to seeing what they come up with. However, I have to say, given the past history of failed national reforms, I think this matter is too urgent to wait for a national response.

The Greens believe that we need to act now to protect children locked away in contravention of international human rights norms. I recently obtained a copy of the Law Society of South Australia's submission to the Attorney-General on this issue. I should say that the submission was not in response to my bill; I do not even know if they had seen my bill at that point.

The Law Society was writing to the Attorney-General because they knew that, nationally, this topic was back up for debate and consideration. Their submission is very welcome because it effectively says in more detail most of the things that I have put on the record today. The Law Society points to the neurological evidence and they highlight the international law obligations.

I now want to address the issue of alternatives to prison. What do we do instead? It is a logical question and we all need to think about this. The question is: if we are not going to lock these young people up, what is the alternative? What do we do about young people who commit acts that have serious consequences, including death or injury to others? If we do raise the age of criminal responsibility, we also need to consider how do we transition out of prison those children who are currently there?

In a media release on Universal Children's Day last year, the co-chair of the National Aboriginal and Torres Strait Islander Legal Services said, as have many others, that the youth justice system is failing all of us and it has to be overhauled. He wants it replaced with a system that is therapeutically and culturally responsive. He said:

Children are being labelled criminals when all of our efforts should be focussed on keeping children safe and supported within their communities. Removing children as young as ten from their families and forcing them into the criminal justice system takes away their basic rights as children to learn, grow and thrive.

So how do we encourage children to learn, grow and thrive? Mr Romlie Mokak, who is the CEO of the Lowitja Institute, said that it was critical that our governments commit to reducing the number of young people in the justice system. He said:

To maximise children's chances to lead healthy, fulfilling lives, governments must focus on early intervention and diversion services. In doing this, it is critical to prioritise engagement with Aboriginal and Torres Strait Islander Peoples, organisations and researchers, particularly in early design of programs and later monitoring of outcomes.

What these people are really saying is that it is back to the justice reinvestment campaign that had some traction a few years ago. That campaign is still alive and well and it makes as much sense now as it did 10 years ago. We need to invest in communities as an alternative to investing in more gaols. We know that it saves money and we know that it saves lives.

However, even the most socially progressive jurisdictions in the world, such as in Scandinavia, do acknowledge the need for detention as a very last resort. In Denmark, for example, children demonstrating deviant and antisocial behaviour may be detained even in high-security institutions, but this is established as a welfare initiative, with the emphasis on therapy and rehabilitation, not as a criminal sanction. So there may be detention for the protection of the community and the rehabilitation of the young person, but not a criminal conviction. As the International Juvenile Justice Observatory states:

…unlike a court procedure there is no legal control by a judge of the criminal guilt of the child, no legal control of the evidence and no legal decision on the length of the period where the child must stay in the alternative place. The criteria are described as the need of the child.

Detention of children under the Convention on the Rights of the Child is permissible, according to article 37(b) of the convention, so long as it is the 'last resort' and for 'the shortest time possible'.

Inevitably, this debate ends up focusing on the outliers rather than the vast majority of children in detention, who are not murderers or rapists. The young boys who killed toddler James Bulger in the UK all those years ago will inevitably be raised in these debates as why we need to reserve the right to imprison children between 10 and 13. Incarceration as a consequence of this behaviour is absolutely an option that society needs to have available to it.

The vast majority of childhood offenders in prisons around the country are not murderers or rapists. They are sometimes kids who have been busted for stealing a strawberry milk or for acting as a lookout for their parent. Many offences involve property damage or the illegal use of motor vehicles. In the latter case, yes, death or serious injury can result, but whether that inevitably means that young people must be dealt with in the criminal justice system as offenders is a very different question to the issue of whether consequences should flow from this type of behaviour.

We know that imprisoning young children causes immense harm and does not ultimately work to keep the community safe in the long run or to help get these young people back on track to fulfil their potential and live constructive lives. It is imperative that we get these kids out of prison before more harm is done. As I have said, it is one thing to stop incarcerating children under 14, but we must also look at transitioning those already locked up into more appropriate arrangements. Whether that is returning home or to some other arrangement depends on what is best for the child and for the community.

In the bill I have a commencement date of one month after the act receives assent. I hope the government will move quickly to establish alternative pathways for young people who behave in unacceptable ways. It very likely will take longer than a month. I am certainly open to negotiation with the government or with other members on a longer implementation period. If this is members' only concern, then absolutely let's look at providing more time to put in place alternative measures, but let's not drag our feet on the threshold question of the age of criminal responsibility.

Every day that these people spend in the Youth Training Centre is a day too long, especially when there are so many better alternatives that we could put in place. When it comes to releasing children from detention, I think that those who are suffering from physical or intellectual disabilities such as fetal alcohol syndrome should be the first to go, and that should be made a matter of urgency.

Finally, I want to acknowledge those organisations and individuals who have been working tirelessly on the Raise the Age campaign, sometimes for many years. There is a website members can visit,, which has more information. Some of the groups that have signed up to the campaign are NATSILS (National Aboriginal and Torres Strait Islander Legal Services), AIDA (Australian Indigenous Doctors' Association) and Change the Record. Members may not have heard of Change the Record, but that is Australia's only national Aboriginal-led justice coalition of legal, health and family violence prevention experts. Their mission is to end the incarceration of, and family violence against, Aboriginal and Torres Strait Islander people.

For members who are keen to read more, have a look in the Sydney Morning Herald today. There is an opinion piece by Shahleena Musk and Sophie Trevitt. That article starts:

As lawyers we did all we could to keep Aboriginal children out of prison. Children who should never have been there.

Also on this list are the Human Rights Law Centre, the AMA (Australian Medical Association) and Amnesty International, and I would urge members to look at their submission which is based on our international law responsibilities. I note they have an online petition as well, which has reached the 60,000 signature mark. Also on the list are the Law Council of Australia, the Public Health Association of Australia and the Royal Australasian College of Physicians. Other groups that have supported the campaign through submissions and statements include UNICEF Australia and the Lowitja Institute.

I offer my thanks to all those groups for their leadership on this important issue. I look forward to seeing the outcome of the meeting of attorneys-general next week, and I also look forward to the contribution of other members in this place when this bill comes to a vote later in the year. I commend the bill to the house.