Motion – Raising the minimum age of criminal responsibility
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Open in new tab Opening Speech to Parliament
Mr President, I begin my contribution today by acknowledging the palawa/pakana of lutrawita/Tasmania, the Tasmanian Aboriginal Community. I pay my respects to their elders, past, present and emerging. I acknowledge the enduring connection of the palawa to this land which was never ceded, a connection that has survived invasion, dispossession, colonial violence and continued discrimination. I make this acknowledgment because of the particular relevance of the motion we are debating today to the First Nation’s people of this state and this country.
Nationally, Aboriginal and Torres Strait Island young people, aged 10-17 years are vastly over-represented in youth detention facilities. According to analysis by the Victorian Sentencing Advisory Council, published this year, Indigenous young people are six times more likely to be detained in Tasmania than non-Indigenous young people. Remarkably and sadly, this is the smallest difference in detention rates between Indigenous and non-Indigenous young people of any state and territory, but I do not believe it is a distinction we can feel proud of here.
Nationally, Aboriginal and Torres Strait Island people children, are over-represented in the youngest age groups in particular. Across the country on an average day in 2018‑19, 65 per cent of children aged between 10 and 13 years who were under youth justice supervision were Aboriginal and Torres Strait Islander, 65 per cent.
While Tasmania rates comparatively well on a national level in the disparity in detention rates between Indigenous and non-Indigenous youth, we can all agree that any level of disparity is unacceptable. Our current minimum age of criminal responsibility and our system of youth justice, including incarceration is not just discriminatory, it is failing. It is failing on every measure. It is failing the young people who encounter it, who are more likely to have experienced disadvantage, abuse, mental and physical ill health, disability, developmental delays, disengagement from education, precarious housing and contact with the child safety system.
We know rather than recognise and meet their needs for support and assistance, the youth justice system sets them instead on a path where they are more likely to reoffend and compound the difficulties they face. But it is also failing our community, where rather than making us safer, more cohesive and resilient, the current ineffective youth justice system puts us more at risk and contributes to a community more divided. When we look at the current minimum age of criminal responsibility and the youth justice system, what is clear is it is neither smart nor compassionate. Just as all laws are updated from time to time to reflect the developing views and expectations of the community and the increasing understanding and evidence base of good policy, it is timely for us to be considering an increase to the minimum age of criminal responsibility in this state.
The motion we debate today should not be viewed in isolation. Right across the country the momentums for raising the age of criminal responsibility is building, and members have a chance today, in this place, to not only be part of that momentum, but to shift it into a higher gear here in our state of Tasmania. In December 2019, the Council of Attorneys-General called for submissions on whether to raise the minimum age and what an alternative system for managing youth justice would look like.
They received submissions from organisations such as Amnesty International Australia, National Legal Aid, the Aboriginal Justice Caucus, the Australian Medical Association, the Australian Youth Affairs Coalition, the Council for Social Services, the Murdoch Children’s Research Institute, the Australian Red Cross, the Royal Australasian College of Physicians, the Royal Australian and New Zealand College of Psychiatrists, Save the Children and the Youth Network of Tasmania.
These are organisations whose expertise spans human rights, the law, physical and mental health, Indigenous justice and youth services. All of these recommended raising the age of criminal responsibility from its current level of 10 years. National Legal Aid, in its submission, helpfully provided some context for how society recognises the physical and cognitive and emotional vulnerabilities of children under the age of 14 years. Their submission highlighted children under 13 years old cannot register as Facebook users. Qantas considers children under 12 years old as unaccompanied minors. An average 10 year old requires a booster seat to travel safely in a car. In some Australian jurisdictions it is a criminal offence for a parent or guardian to leave a 12 year old alone and accompanied. Yet across Australia 10 year old children can be arrested and detained in custody for alleged criminal offences.
It seems incredible we are perhaps more careful about who we sit an 11-year-old next to on a plane than we are with what we might expose the same 11-year-old to in our youth justice system. This is not just an issue that has momentum in Tasmania, or nationally. It is an issue that has international attention. In 2019, the United Nations Committee on the Rights of the Child – the UN committee I am going to call it – recommended all UN member states raise the minimum age of criminal responsibility to at least 14 years of age.
In its observations on Australia the UN committee noted, with serious concern, the very low minimum age of criminal responsibility in all states and territories and recommended Australia raise the minimum age to reflect internationally accepted standards to the upper age of 14 years. In its general comment number 24, 2019, on children’s rights in the child justice system, the United Nations Committee on the Rights of the Child noted that under article 43 of the convention, state parties are required to establish a minimum age of criminal responsibility, but the article does not specify the age. Over 50 state parties have raised the minimum age following ratification of the convention, and the most common minimum age of criminal responsibility internationally is 14.
It is worth noting at this point the age of 14 has not not always been the internationally recognised standard. In 2007, the UN committee’s last general comment on this matter, it stated that:
A minimum age of criminal responsibility below the age of 12 years is considered by the committee not to be internationally acceptable.
In 2019, however, it revised that age to 14 years based on documented evidence in the fields of child development and neuroscience, which indicates clearly that:
Maturity and the capacity for abstract reasoning is still evolving in children aged 12 to 13 years due to the fact that their frontal cortex is still developing.
This is a good example of responding to the improvement of our understanding based on evidence and reflecting community views and expectations. The UN Committee noted that children under age 14 are therefore unlikely to understand the impact of their actions or to comprehend criminal proceedings fully. Not only has this been recognised by the United Nations but by many of the stakeholders who have engaged with this issue – from social workers, lawyers, former magistrates, and youth services. The UN general comment went on to recognise that these children are also affected by their entry into adolescence. As the committee notes in its general comment number 20 from 2016, which is on the implementation of the rights of the child during adolescence:
Adolescence is a unique defining stage of human development. It’s characterised by rapid brain development and this affects risk taking, certain kinds of decision making and the ability to control impulses.
In January of this year the Australian Government appeared before the UN Human Rights Council in Geneva for its major human rights review that happens every four to five years. At this review, known as the Universal Periodic Review, the UN member states questioned Australia about its human rights record and recommended improvements. 122 countries made close to 250 recommendations to us. One of the key issues of concern raised in that forum was the very low age of criminal responsibility in Australia. 31 countries recommended that Australia raise the age to at least 14. These recommendations came from countries, including Italy, Venezuela, Slovakia, Spain, Sri Lanka, Mexico, Canada, Denmark, France and Germany.
These criticisms of Australia’s record on this issue are nothing new. In its concluding observations on the combined fifth and sixth periodic reports of Australia in 2019 the Committee on the Rights of the Child urged Australia to raise the minimum age of criminal responsibility to an internationally accepted level and to make it conform with the upper age of 14 years. In 2017 the UN Human Rights committee stated that it remained concerned that the age of criminal responsibility for Commonwealth, state and territory offences is 10 years and that the state party should raise the minimum age of criminal responsibility in accordance with international standards. So too did the committee on the Elimination of Racial Discrimination. These are resounding calls. Furthermore, the United Nations Special Rapporteur on the Rights of Indigenous People published a report on her 2017 visit to Australia and noted:
The application of criminal responsibility as low as the age of 10 years across the country is deeply troubling and below international standards.
And further, that:
It is wholly inappropriate to detain children in punitive rather than rehabilitative conditions. Aboriginal and Torres Strait Islander children are essentially being punished for being poor and in most cases, prison will only perpetuate the cycle of violence, intergenerational trauma, poverty and crime.
To put Australia’s minimum age in an international context, we can look to the age of criminal responsibility in other national jurisdictions. The global median age of criminal responsibility is 14. In Angola, for example, the minimum age of criminal responsibility is 14 and the minimum and maximum sentences for those between ages 14 and 16 are reduced by two thirds, and halved for those between 16 and 18. A sliding scale applies there, through to the age of majority – 18 years. The needs of rehabilitation and social reintegration are also to be taken into account for anyone under the age of 18 in that jurisdiction. In Belarus, the standard age of criminal responsibility is 16 ; but those between the ages of 14 and 16 can be held responsible for select serious crimes, as outlined in a particular part of their criminal code. The ages 14 years or higher in Georgia, in Germany, Japan, Vietnam, Columbia, and the Democratic Republic of Congo – these are just some examples. Hugh de Kretser, the Executive Director of the Australian Human Rights Law Centre observed that the Australia’s human rights record is:
plagued by human rights failures and particularly by its treatment of Aboriginal and Torres Strait Islander peoples. As a wealthy, stable democracy Australia should be leading the world on human rights, yet too often Australian Governments breach people’s rights in critical areas. This must be linked to the appalling rates of incarceration we see in our First Nation people.
As stated by the United Nations Committee on the Rights of the Child, the medical and scientific evidence on neurodevelopment supports the claim to raise the age of criminal responsibility. Numerous Australian medical organisations have supported raising the age to at least 14, with their views rooted firmly in scientific research. These include the Royal Australian and New Zealand College of Psychiatrists, the Australian Medical Association, the Royal Australian College of Physicians and the Public Health Association of Australia.
The science is clear. Neurodevelopmental evidence demonstrates that the period of adolescence brings increased impulsivity and sensation seeking behaviour, coupled with a heightened vulnerability to peer influence which affects decision making capacity. The frontal lobe of the brain, that plays a key part in various elements of cognition including judgement, empathy, consequential thinking, the inhibition of impulses and coherent planning, continues to be developing physically until a person enters their early 20s. This means the frontal lobe is significantly underdeveloped when a child is in adolescence, particularly early adolescence. Children under the age of 14 are also limited in their capacity for abstract reasoning, which means they are unlikely to comprehend the true impact of their actions or of criminal proceedings.
The Royal Australian College of Physicians has stated that:
A range of problematic behaviours in 10 to 13-year-old aged children that are currently criminal under existing Australian law are better understood as behaviours within the expected range in a typical neurodevelopment of a 10 to 13-year-old with significant trauma history. Typically actions that reflect poor impulse control, poorly developed capacity to plan and foresee consequences such as minor shop lifting or accepting transport in a stolen vehicle.
Given the high rate of neurodevelopmental delay experienced by children in juvenile detention, including conditions such as fetal alcohol spectrum disorder (FASD) and delayed language development, the Royal Australian College of Physicians submitted that these behaviours often reflect the developmental age of the child which may be several years below their chronological age. Judging criminal responsibility on the basis of a chronological age is therefore inappropriate for children who may have a much lower developmental age due to a number of medical and developmental conditions described.
Similarly, there is also significant evidence that a large proportion of young people in the criminal justice system have significant health issues, including mental health issues; disability – including FASD; substance misuse; sexual health – including STIs; and trauma. Young people who enter the justice system are more likely to be affected by disabilities and poor mental health and wellbeing. Youth justice supervision and detention exacerbate these challenges that the young people and children face.
A recent study by the Australian Institute of Health and Welfare found that 75 per cent of young people involved in the justice system had experienced some form of non-sexual abuse including physical, verbal, emotional, financial or neglect. Compared with their peers in the general community, justice-involved young people were six times as likely to have attempted suicide; more than twice as likely to have recently self-harmed; and twice as likely to experience high or very high psychological distress. A third of the young people involved in the justice system met the criteria for at least two mental health disorders. These are not conditions that are best dealt with in prisons. These are not members of our community that are best helped by the justice system.
Mr Valentine – You said six times?
Ms WEBB – Six times as likely to have attempted suicide.
Mr Valentine – If they are incarcerated?
Ms WEBB – Yes, young people who have got an involvement with the justice system.
Mr Valentine – I wanted to get that clear, sorry to interrupt your flow.
Ms WEBB – Additionally, it has been proven that incarceration of young people may systematically degrade their healthy development further. Cumulative incarceration duration during adolescence and early adulthood, is independently associated with worse physical and mental health later in adulthood, including functional limitations, depressive symptoms and suicidal thoughts.
Expert witnesses at the 2016 Royal Commission into the Protection and Detention of Children in the Northern Territory, directly linked experiences of youth detention with subsequent violent offending and with a cycle of repeat incarceration, setting young people up to fail.
As was submitted by the Public Health Association of Australia, and I quote:
Despite the high level of need for mental health services, few young people involved with the justice system access these services in the community. There is a clear need for holistic trauma informed social and health care interventions for these young people with priority given to preventing, identifying and intervening to reduce abuse.
Not only is the current system not helping the children, nor is it helping society more broadly. Studies have shown that the younger children are when they encounter the justice system, the more likely they are to reoffend. We set them on the path.
The Australian Institute of Health and Welfare, identified that children who are first subject to supervision under the youth justice system due to offending when they are between the ages of 12 and 14, were more likely to experience all types of supervision later in their teens, 33 per cent compared to 8 per cent of those who first became involved at older ages.
There is no doubt that this issue affects Aboriginal and Torres Strait Islander children and young people more than anyone else. Indigenous children are vastly over-represented, as I said, in the justice systems of all jurisdictions in Australia. A very important step to addressing this is raising the age of criminal responsibility.
The Australian Medical Association notes that about 600 children below the age of 14 are locked away in youth jails each year nationwide, with Aboriginal and Torres Strait Islander children constituting 70 per cent of this cohort. They also note that about 9000 children below the age of 14 have contact with the broader criminal justice system each year. Overall, Aboriginal and Torres Strait Islander children constitute about 5 per cent of the youth population, yet close to 60 per cent of children in prisons.
The National Aboriginal and Torres Strait Islander Legal Service (NATSILS), in their submission to the Council of Attorneys-General Age of Criminal Responsibility Working Group Review, stated that a higher minimum age could also prevent children and young people, particularly Aboriginal and Torres Strait Islander children and young people, from being trapped in the quicksand of the criminal justice system. I think that is a really appropriate metaphor, ‘the quicksand’. It is very hard to get out once you are in.
NATSILS also suggested that a trauma-informed approach to the minimum age of criminal responsibility is particularly important for children and young people. NATSILS suggests that this is critical factor that must be considered when discussing raising the age, as Aboriginal and Torres Strait Islander children and young people are particularly more likely to experience early trauma than their non-indigenous peers.
Locally, Rodney Dillon, is a palawa elder and Amnesty International’s Indigenous Rights Adviser. He has called for Indigenous and community-led solutions, stating that:
This is all about the kids. I don’t want to see one set of 10-year-old eyes in a prison system. It really hurts me to see that when those kids could be doing better somewhere else. As an Aboriginal person I have seen all my life people go into that system and never come out of it, and I could have been one of those kids.
That is powerful. NATSILS, in their submissions stated the importance of Indigenous children’s connection to country, to land, family, community and spirit. They emphasise that children flourish particularly when they have and are allowed to develop strong and positive social networks and have strong leadership in their families and communities.
Members of the stolen generation and their children are particularly more likely to be forced into or experience poor physical and mental health outcomes, inadequate housing, substance abuse, lower incomes, over-policing and therefore over-incarceration.
In 2012-13, almost half of all Aboriginal and Torres Strait Islander adults reported that they or their relatives had been removed from their natural family.
Because of these entrenched and systemic disadvantages, some Aboriginal and Torres Strait Islander children can be trapped in cycles of trauma, poverty, injustice and illness at key times of their neurological development. These further compound and entrench their disadvantage.
I was particularly struck by another comment from Rodney Dillon. He said this:
I fear that there are a lot of kids that have gone into that system that would have made great leaders in their communities.
That is a comment that goes to the heart of this issue. Children embody potential. How we support and educate, love and protect them, will determine whether that potential has the opportunity to be realised.
I would like to mention some matters now in relation to this motion that come up and are raised at times in the discussions on the proposal to raise the minimum age of criminal responsibility. Currently, when a child between the ages of 10 and 14 is charged with a criminal offence, what occurs in response is governed by the common law legal principle known as doli incapax – I am probably saying that incorrectly and I am going to keep saying it incorrectly but we will all cope. This is the presumption that children under the age of 14 cannot be held criminally responsible for an offence unless it is proven that they knew what they were doing was seriously wrong.
The principle of doli incapax is often raised as an argument against raising the age of criminal responsibility. However, there are so many practical problems with the current application of that principle in Australia that render it giving very little or no protection to those children who need it most.
As emphasised by Youth Law Australia, the Human Rights Law Centre and the Law Council of Australia, the evidence of doli incapax’s application in Australia highlights concerns with evidentiary issues. They point to it leading to the admission of evidence that would commonly otherwise be inadmissible. To an unofficial reverse onus of proof, to inconsistent application and a lack of coherence of the principle which can lead to the prolonged involvement of children in the criminal justice system.
There are practical difficulties in proving whether a child knew that a certain act was wrong under doli incapax. Reports have shown that in attempting to rebut the presumption the prosecution is often allowed considerable evidentiary concessions and prejudicial normally inadmissible material is deemed to be admissible. The UN Committee on the Rights of the Child observed that the presumption of doli incapax can lead to children being treated differently based on evidence brought to rebut the presumption which might not necessarily require evidence from an expert, like a psychologist.
As Youth Law Australia observed, ‘the evidence that is commonly used fails to take into account the interaction between a child’s developmental maturity and the conditions in which an offence occurs’. Furthermore, contrary to the key element of the presumption that the onus of proof lies on the prosecution, in practice the principle is applied inconsistently which can lead to unofficial reversal of the onus of proof. According to recent research with legal stakeholders in Victoria, the onus commonly fell on the defence to provide a report at their own cost to establish that the child is doli incapax. Stakeholders in this research also indicated that children may refuse an assessment without full comprehension of the consequences of that decision and this could lead to the wrongful conviction of children.
The presumption has also been criticised on the basis that it prolongs a child’s involvement with the criminal justice system due to a lack of coherency over how the presumption operates, leading to children being held in custody for lengthy periods before the presumption is led or tested in court and the child acquitted. The trial to determine capacity and guilt could take months or longer, depending on court lists, case management processes or the availability of experts and other witnesses relevant to the proof of knowledge and maturity. As there is significant research demonstrating the negative psychological affects experienced by children in custody, this prolonged involvement with the system is troubling.
The vast majority of submissions to the National Working Group recommended abolishing the flawed presumption of doli incapax on the basis that it does not work in practice and instead, to use the effective measure of raising the age to at least 14. The issue of raising the age of criminal responsibility in Australia has been discussed for some years.
The Tasmanian Attorney-General, Elise Archer, has repeatedly stated that she wants to see a nationally consistent position on any reform in this area. The Council of Attorneys-General initiated the working group on the minimum age of criminal responsibility in November 2018 but three years later here we are and we are yet to have reached a nationally agreed way forward.
On 27 July 2020, the then Council of Attorneys-General was presented with a report from the minimum Age of Criminal Responsibility Working Group public consultation, comprising submissions – and I have mentioned some of these already, from 88 bodies, legal; Indigenous; human rights; social service organisations. That report about those submissions overwhelmingly recommended the age of criminal responsibility be raised to at least 14. And yet the Council of Attorneys-General postponed a decision on raising the age last July. A change to the council’s operating structure now means it will only convene as necessary to discuss up to three items of national importance over a 12‑month timeframe. And guess what? Raising the age is not on this year’s agenda. We are going to push it down the road even further, if what we are waiting for is a national approach. In a statement the federal Attorney-General’s department said the minimum age of criminal responsibility is primarily an issue for states and territories, as the overwhelming majority of offences involving children are state and territory, not Commonwealth offences and that ultimately, it will be a decision for each jurisdiction whether to raise the minimum age.
It is clear that left up to the federal Attorney-General or the Council of Attorneys-General this much needed reform will not take place in the foreseeable future. And it does not need to wait for action at that level. It is both right and appropriate the states and territories take this matter into their own hands, rather than allow continued bureaucratic delays at a national level to hold us back from a reform which is both smart, compassionate and also timely.
This has already begun to happen in other jurisdictions with the ACT government passing a motion to raise the age to 14. In July, a discussion paper was released by the ACT Attorney-General to help steer the government’s approach to the complex legal and systematic questions that lay at the heart of implementing this issue. On 10 October, an independent review commissioned by the ACT government was released, detailing the work and the reforms needed to assist in raising the age with the new legislation being planned to be introduced in the territory in 2022. It is an excellent report released just this year. The report assessed the current service system and identified the changes necessary to better meet the needs of children most affected by raising the age. It is a very valuable resource and provides what is virtually a roadmap that could and should be used to help other jurisdictions, including Tasmania, to make progress on this issue. What this also illustrates is this is a commitment by a state or territory government to raising the age is the starting point for a careful process to plan for its implementation.
We need to be very clear this is not a case of simply raising the age out of the blue one day and leaving it at that. A commitment is the starting point, a decision on the policy is the first step and then we look to how – the ‘how’ of how we replace an inappropriate and ineffective system with an evidenced‑based, appropriate and cohesive system. Recently, we have also seen traction on this issue in Western Australia, with the Western Australian Labor Party passing a motion at their state conference committing to raising the age. With that party holding 53 of 59 seats in the West Australian Legislative Assembly and 22 of the 36 seats in the Legislative Council it is highly likely this reform will be legislated there in the near future. And yet, Tasmania has a chance here to be the first state to pass a parliamentary motion of support for raising the age and to be a nation leader in this much needed reform. Rather than waiting for an unnecessary national approach, it is important and perhaps more appropriate for Tasmania to make our reforms on this issue a leadership issue nationally. Each state and territory in Australia have its own youth justice legislation policies and practices, it is up to us, therefore, to decide what happens in this state on this issue.
It is also important to note that historically there has not always been uniformity when it came to the minimum age of criminal responsibility. It is not a precondition for us to make this change that everybody else does it at the same time or lands in the same place we do. It took around 24 years for the Australian government to achieve the present uniform minimum age of 10 years in all Australian jurisdictions, with Queensland first raising the age from seven to 10 years in 1976, and Tasmania being the final jurisdiction to raise the age from seven to 10 years in 2000, 24 years later. That time we were the last out of the block. This time we have the opportunity to be the first state out of the block to make this change.
The Tasmanian Government has the positive opportunity to grasp this position and step out from behind unnecessary delays that are occurring at a national level. It would be very poor, indeed, it would be a threadbare excuse that inaction at a national level should see us continuing to fail Tasmanian children and communities in delivering a more effective youth justice response in this state. Rather, the Government can have confidence in taking leadership action on this issue.
There is a great deal of support in the Tasmanian community for raising the age of criminal responsibility. Just yesterday, Amnesty released a statement of support which was signed by around 50 prominent Tasmanians. I would like to read that statement into the record today and mention some of the signatures to show the breadth and depth of support for this positive reform. This is the statement of support to raise the age of criminal responsibility in Tasmania. It says:
We, the undersigned, call upon the Tasmanian Government and the Parliament of Tasmania to take urgent action to raise the minimum age of criminal responsibility in Tasmania to at least 14 years of age. Major Australian organisations representing the medical, mental health, child welfare, and legal professions, as well as human rights bodies and organisations representing Aboriginal and Torres Strait islander people agreed that the current minimum age of criminal responsibility, 10 years of age, is far too low.
The scientific evidence is overwhelming that at the age of 10 a child’s brain is still developing, particularly in terms of reasoning skills, impulsivity and consequential thinking. The evidence also shows that many children who become involved in the criminal justice system come from disadvantaged backgrounds and have complex needs that are better addressed outside the criminal justice system, through a developmentally appropriate, trauma informed and culturally-based early intervention model that supports children in their families and communities.
Furthermore, there is also strong evidence that the younger children are when they first encounter the youth justice system, the more likely they are to reoffend. Finally, the numbers show that the criminalisation of children in Australia overwhelmingly affects Aboriginal and Torres Strait islander children. The UN Convention on the Rights of the Child, in force in virtually all countries in the world states that the best interests of the child must be the primary consideration in all actions concerning children.
We note that this issue has been under discussion nationally, that after three years, Attorneys-General of the states and territories have not been able to agree on a way forward. There is no reason for Tasmania to wait for national consensus. Indeed, the Federal Attorney-General has stated that ultimately it will be decisions for each jurisdiction whether to raise the minimum age. This is an opportunity for Tasmania to show a better way of treating kids, a model based on programs and services that address the underlying causes of their behavior, including programs for Aboriginal youth led by Indigenous people. Tasmania should act swiftly to raise the age of criminal responsibility and we commit ourselves to support this process in whatever way we can.
What a wonderful resounding statement that is, especially that commitment to support the process in whatever way. Let me mention some of the signatories to this letter. I will table it so the full set of signatories can be put on the record. But just to mention Professor David Adams, Professor of Management at UTAS; Professor Nicole Asquith, who is the Director of the Tasmanian Institute of Law Enforcement Studies; Yvette Cehtel, CEO Women’s Legal Service Tasmania; Rodney Croome from Equality Tasmania and the 2015 Tasmanian of the Year; Christian Desmond, founder of Tasmanian Disability Education Reform Lobby and Chair of the Children and Young People with Disabilities Australia; Connie Digolis, CEO of the Mental Health Council; Rodney Dillon from Amnesty, as Indigenous rights advisor; Saul Eslake, independent economist, Matthew Evans and Sadie Chrestman from Fat Pig Farm.
We have Simon Gates, President of the Law Society; the honourable Lara Giddings, former premier and attorney-general of Tasmania. We have Michael Hill, the former chief magistrate of Tasmania and former acting justice of the Supreme Court of Tasmania. He is also the chair of the Just Desserts Drug Court Support group; Tania Hunt, CEO of YNOT; Rosalie Martin, founder of Connect42 and 2017 Tasmanian of the Year; Leanne McLean, Commissioner for Children and Young People in Tasmania; Scott Rankin, creative director and CEO of Big hART and 2018 Tasmanian of the Year; Councillor Anna Reynolds, Lord Mayor of Hobart; Grace Tame, 2021 Australian of the Year; Rob White, Distinguished Professor of Criminology, School of Social Sciences at UTAS; Thirza White, General Secretary of the CPSU; and I will finally mention Jim Wilkinson, former President of the Tasmanian Legislative Council and President of the Tasmanian Football Board.
That is just some of the signatories; but it gives you a flavour of the breadth of people who support this move. I was particularly impressed with that collection of former Tasmanians of the Year; I almost had a set.
Mr President, I seek leave to table the document.
Leave granted.
Ms WEBB – Thank you, Mr President. In addition to those prominent Tasmanians who are signatories to that statement, we know that there are many everyday Tasmanians – mothers, fathers, brothers, sisters, teachers, elders – who do not want to see 10-year-old children locked up. I particularly acknowledge the work of Amnesty in this space, and the work of local volunteers here in Tasmania, in particular Sylvia Merope, the convenor of Amnesty Southern. Sylvia and the Amnesty team have been strong and persistent advocates on this issue.
In its submission to the Council of Attorneys-General Age of Criminal Responsibility Working Group review, Amnesty highlighted that the minimum age of criminal responsibility has been an important area for Amnesty International’s research into the over-representation of indigenous children in youth justice systems across Australia. In addition to recommending that the minimum age be lifted to at least 14, Amnesty further recommended that all Australian Governments transition all children out of prison within a year, and abolish the notion of doli incapax.
Raising the age of criminal responsibility provides an opportunity to redesign the approach our state’s system takes to understanding and responding to harmful and troubling behaviour in children. Redirecting our response to this behaviour from a criminal justice response will shift the focus from what the child might have done, to what the services need to do to better support and prevent such things from happening. The discussion paper that was released by the ACT government includes many helpful areas of suggested reform to redesign our service system to better meet this need. They suggest the creation of a multidisciplinary panel, for instance, made up of experts who can assess the needs of the children and young people, provide referrals to appropriate services to meet their needs, and work closely with the children and their families to ensure that they attend these services. Suggestions are that experts on this panel could cover areas such as medical, paediatrics, education, social work and child protection and that this work would be done in an inclusive and cohesive way. The panel would be able to respond earlier and more effectively, and with a greater emphasis on the rights of the child than the current youth justice system ever could. That is just one model that is being looked at in that ACT paper.
It is clear that further support is needed for children and young people and their families well before situations reach crisis point. These supports, like physical and mental health services, education support, disability services and counselling, as well as services such as stable accommodation, will go a long way to addressing the issues that result in children becoming involved in youth justice.
With the Government’s recent announcement of the closure of Ashley Youth Detention Centre, now is the time to start the much-needed reform of youth justice in this state. I echo the words of the Premier, Peter Gutwein, in his announcement on 9 September, regarding the need for reform and investment in:
A contemporary, nation-leading therapeutic approach to youth justice.
Raising the age is the first step to this reform, as has been recognised by civil society, indigenous organisations, United Nations and other national and international jurisdictions. In conclusion, by chance, we are debating this motion in National Children’s Week. I hope that other members of the Chamber have found it as valuable and enlightening as I have to direct our attention to this topic, and to give consideration to the opportunity that we have in this state for sensible, evidence-based, compassionate reform. We have all received some compelling communications from a range of advocates on this topic, and I am sure that some of those will be referred to in contributions from my colleagues in the Chamber.
I will finish by sharing an anecdote from a young lawyer who has communicated with me on this topic. It illustrates the need for reform. He told me this:
As a young law graduate I volunteered and undertook an internship with the Aboriginal Legal Service in Western Australia. There I came into contact with so many young clients many of whom were first charged with offences at the ages of 10 or 11. In a situation that highlights the farcical nature of the current system, once at the magistrate’s court, the magistrate who was appearing via video link told our client to stand up. He did so. Then the magistrate told him again to stand up. The magistrate had to be informed that the client was in fact standing up, because he was so small that she could not tell.
Children do not belong in the criminal justice system. To have them there is not smart justice; it is not compassionate justice. It does not serve our community. This motion today is a statement of encouragement from this place to the Tasmanian Government. We are at an ideal time for positive change. We have an opportunity to do better – not only for the safety and wellbeing of our community overall, but importantly for those Tasmanian children who teeter at a point in their already disadvantaged and too often trauma-laden lives; at a point at which they might be provided with support, growth and healing, or at which they may be criminalised and face a slippery slope to entrenched criminality and harm.
Let us agree to grasp this opportunity and to put our state at the forefront of positive change. I commend the motion to the House.
Closing Remarks
Ms WEBB (Nelson) – Might I just say thank you very much to the members here who have made contributions on the motion and made this a very interesting and worthwhile debate in this place. I really appreciate the thought, the time and the preparation that went into the contributions that were made, and for people’s engagement with the briefings that we received and with the material that they have been sent by advocates and by others in the community. I really appreciate it. I think it is very positive that we have these contributions on the public record and the parliamentary record. I think it has been very reflective of the overwhelming evidence base, the national and international sentiment towards this occurring, and the inevitability really that this is the path we are on. We will be doing this at some point. It is for our state to decide, and for the leaders of our state to decide when that happens.
I brought this on for debate to help progress the public and the political conversation about it, hoping that there would be some receptivity there to look at the opportunity we have to be leaders and to be responding to solid evidence bases and solid national and international advocacy and very compelling local advocacy. Thank you to those who have responded to that and engaged with it.
I found all the contributions particularly of interest and thoughtful and useful. Thank you to the member for Murchison for a thorough and extended look at the different matters about this issue. I appreciated the time you spent recognising the limitations we have on accessing support services in this state, particularly in parts of the state that are more regional and remote. There is the need for us to do much better in providing those sorts of services. We need to change the way we do things and regardless of when this eventuality comes to pass, we will need to be looking at how we better meet the needs of the people of our state through service provision.
Member for Mersey, thank you for your contribution. I found it thoughtful and it pointed to a lot of the evidence base that was there. You are right. We do need to develop systems that are based on science and evidence. You picked up on the reality that we do not need to delay doing this as a state. We could be looking at it for ourselves.
Thank you to the member for Rumney. I appreciated your contribution. I found it interesting and quite compelling to hear you reflect on your daughter as a 10‑year‑old. Most people when they hear that the current age of responsibility is 10 tend to think of those people in their lives who are around that age and contemplate what that might mean for children of that age group. You talked about the fact that it is not about holding young people responsible. It is not about disregarding holding young people responsible.
You talked about it being holding them responsible appropriately and in a trauma-informed way. I thought that was spot on, that we are not just going to whip away that age and leave a void and a vacuum. No-one is suggesting that, despite how the Government may like to paint this motion and mischaracterise the call that it is making, that is not something that any of us are calling for. It is a shame that we cannot honestly engage with the content of the motion from the Government’s point of view. I am disappointed about that.
I appreciated the member for Elwick’s contribution. He has insight into this as previously being a teacher. He talked about the fact that we do identify young people readily through the education system who are going to ultimately potentially end up in situations where they encounter the youth justice system. He talked about the waste of human potential when we do not respond and we leave it too late. We have missed opportunities for early intervention when flags were raised and we end up in later stages of behaviour, later stages of urgency trying to respond in a way that can be healing and helpful.
It was interesting for many members’ contributions to have reflections on Ashley Youth Detention Centre and I appreciated that it came from a range of members who had different reasons to encounter Ashley Detention Centre and were able to bring those personal reflections. I thank them for that. I have not been to Ashley Youth Detention Centre personally so I always find it interesting to hear from people who have with different hats on.
Member for Hobart, thank you for your reflections. I thought your reflections about someone who installed the computer system at Ashley Youth Detention Centre was one out of left field that I had not been expecting. That was interesting and going through the Custodial Inspector’s Report was an interesting way to be considering some matters that related to this topic.
Mr Valentine – If I may, what I did not do was go to the same report for Risdon Prison and look at what they have found and you think to yourself, do you want to put children into that circumstance at the end of what they go through?
Ms WEBB – We know there is a clear trajectory from one to the other, do we not?
Mr Valentine – You would not want to put them there.
Ms WEBB – Yes. That is the trajectory that we are trying to disrupt here with making evidence-based changes to the way we do things which have been shown not to work well.
I did note that you raised the idea there have to be exceptions, I think that was the way you talked about it. That is part of the conversation about the complexity of implementation that was necessary and we all recognise is necessary and a part of this process. For me, my first response to that concept of exceptions is to think what would be our exceptional response? Rather than where would we make an exception and say that child is so bad we are going to punish them in this way, my response would be I wonder what we would establish as exceptional responses to respond to those sorts of severity or urgency. That would be a very good conversation to have as part of the implementation planning with those who are expert in these areas.
Of course, other jurisdictions, many of them around the world have grappled with similar things. We would draw on the overwhelming evidence base that would be there for us to look at and to see, especially for those jurisdictions who have made this sort of change sometime past and we can see how it has played out over time and what that tells us.
The member for Launceston, thank you for your personal reflections too that added a lot of flavour to this debate. I had others. I was slightly concerned about the idea of police giving Maccas to young children as inducements to confess. Unfortunately, that bit stuck in my mind probably a little bit too much. I would hope that would not be happening in the community.
Ms Armitage – It was more my complaint to them they were looking after these kids too well. They said they found they had better responses if they started bribing them, but they gave them things they liked, which they probably did not get very often.
Ms WEBB – That in itself is very illustrative. They found it was easy to work with the children when they met their needs and their basic need of hunger.
Ms Armitage – I do not think it was bribery, it was more they were giving them things they liked and they became much more conciliatory.
Ms WEBB – Taking that on face value now I am saying, isn’t it interesting when you meet someone’s basic needs? It becomes easier to work with them. They respond better. It becomes a better interaction. This is true of this whole system. It is actually what is behind the whole idea of raising the age of criminal responsibility is that if we had not been failing to meet the needs, the clear and demonstrated needs of these children over an extended period of time and their families, they would not have been in the situation they are now. Let us, in a broader, less fast food way, perhaps, give them their Maccas at an earlier point in the chain.
Mr Gaffney – If that option was not there at the age of 10, you would be looking for other ways of trying to make the change to impact on their behaviour. But because that is there at the age of 10, that is where we go for those really difficult kids.
Ms WEBB – One of the things I have been reflecting on listening to contributions is the idea about people feeling in a sense we cannot not hold these children responsible in some way for their behaviour. It does have consequences and there may have been victims. This sense of who is responsible? Who can we hold responsible? My reflection on that is well, while it might be tempting and an inclination to hold these children responsible, we should surely first have to hold ourselves responsible. Hold ourselves responsible as a community, hold ourselves responsible as a government, as a parliament, as service systems that have the ability to meet the needs of our community and the people in it, that have the ability to respond well and better and earlier when people have been shown to need support.
That is our responsibility, who is holding us responsible for that and holding us to account? That is what this is inviting us to do more effectively. Again, thank you to the member for Pembroke for her contribution. I knew with the background with the Youth Network of Tasmania, you would have some very pertinent reflections on this. It was also very positive to hear about your experiences when you were in that role and again, how actually through different sorts of lenses to some of the others. You talked about the punitive approach being more likely to lead to reoffending. That is just so squarely demonstrated in the evidence we just cannot go past the need to change that.
Thank you to the member for McIntyre. I read your op ed in the Examiner last Friday. I thought it was excellent. I appreciated that as your contribution to the public conversation. It was good to hear more on that from you today, thank you. You did mention in answer to the questions you had put in the Chamber that the Government had talked about wanting to have a nation‑leading approach and wanting to put things like wraparound support in place. Like you, I was really heartened to hear that from the Government and it is very positive to hear that intent coming through. It does present us with the opportunity to consider at this early stage of that work where raising the age fits. If we are doing this big redesign, with excellent principles underpinning it like wraparound support, like trauma informed approaches, like restorative justice approaches, it is an ideal time to think about where we build in a raising of the age.
That brings me to the Government’s contribution and I am not going to go into too much detail, I am just going to talk briefly about the fact I am disappointed the Government felt the need to mischaracterise and misconstrue the motion. It presented them with a really interesting positive opportunity. The Member for Elwick also emphasised the opportunity and hoped that the support from the opposition on this matter would be an encouragement to the Government to see it was something they could be open and courageous about.
Of course, to be utterly clear, absolutely no one, not me, not other members in this Chamber, not any of those multitude of advocates out there in the community, including the Commissioner for Children, have ever suggested we would raise the age of criminal responsibility in some sort of void or vacuum. That we would summarily do it straight off the bat, without any process in place. What I will put on the record is what we heard very clearly in our briefing and believe it was Trevor McKenna from the Law Society of Tasmania, who spoke to us in the briefing about the absolute imperative to actually see this change happen you need the policy commitment first and then you need the implementation plan. Unless you get that policy commitment put in place, unless you have the intention stated by the Government, ‘Yes, this is something we want to do.
We want to raise the age of criminal responsibility because we know overwhelmingly it is the evidence informed and the right thing to do,’ and from that commitment we then build a process to make it happen and we do that through the things the Government mentioned. Things like consulting with the community; having the TLRI provide expert advice; having other stakeholders provide expert advice. We layout an absolutely credible and robust process of how we get there, but we do not do that – and we do not do it in a comprehensive and effective way if we have not made the commitment first and is what Trevor McKenna from the Law Society put to us in the briefing.
We need the policy commitment and then we need together to put the implementation plan in place. All the plans the Government talked about in their contribution today could be part of that implementation planning and phase. All of it could, all they need to do is start that process and it would fit very well into the other sorts of commitments they have made on closing Ashley and reforming the approach. To say, ‘As part of this it is our intention to ultimately raise the age of criminal responsibility in this state to 14.’ Built in then as we go forward over the next one, two, three years, across that process we then put a robust plan in place, just like ACT are doing now.
Mr Valentine – Phase one out, phase one in.
Ms WEBB – What a shame.
Mr Gaffney -What I heard was, ‘We’ll let the Attorneys-General come back with a plan,’ that may not happen within two years, five years, 10 years, 12 years. We could still be in this position 10 years from now because the national body have not made any changes or have not made any suggestions, regardless.
Ms WEBB – Precisely right.
Mrs Hiscutt -By way of personal explanation, the Attorney-General did say in her contribution that she is progressing those talks as we speak.
Mr Gaffney – Through the national group and could be forever. There is no commitment there at all.
Ms WEBB – I will pick up on that and just mention, as I pointed out in my contribution, it is not on an agenda to be dealt with by that group in the next 12 months in a definitive way. And here is the thing, even if national agreement was reached and a national intention formed through that group, as it may well be, we still have to do the work at a state level in this jurisdiction. Every jurisdiction looks a bit different, every jurisdiction’s service system looks a bit different. Each jurisdiction will have to make their own policy commitment and they will have to make their own implementation plan. We are inevitably on the path to that. There is no way that we in this state are not raising the age of criminal responsibility to at least 14 at some point. It is happening.
At some point we have to decide to do it and we will put the implementation plan in place. What a shame the Government is not taking the opportunity, it sounds, to do it at this moment when they have other very laudable and very positive plans in place in this space. I was disappointed that the Government could not be honest enough to engage with the motion without trying to misconstrue it, without trying to verbal it and say it was something it is not.
None of us believe this is something that happens on a whim in a moment’s notice or in a void or vacuum. All of us want to see this happen in a positive, comprehensive constructive way in this state. I thank the members who have expressed support for the motions and I commend the motion to the House.
Motion agreed to.
