Call for SA to take national lead in lifting criminal age to 14

Pressure is mounting on the State Government to lift the age of criminal responsibility in South Australia from 10 to 14 years, but Attorney-General Vickie Chapman says no decision will be made until a federal review is handed down.

Jul 23, 2020, updated Jul 23, 2020
Photo: Tony Lewis/InDaily

Photo: Tony Lewis/InDaily

Chapman will meet with her state and territory counterparts on Monday to discuss a national approach to lifting the criminal age.

It comes after state, territory and federal attorneys-general last year agreed to a 12-month review of the age of criminal responsibility in Australia, amid concerns children as young as 10 were being charged with criminal offences and sent to youth prison.

Ahead of Monday’s meeting, Aboriginal children’s advocates have called on Chapman to commit to lifting the criminal age in SA to at least 14 years ahead of a national decision, following the release of new data showing the rate of imprisonment for Aboriginal children in the state is approximately 20 times that for non-Aboriginal children.

According to the data, released by the Victorian Sentencing Council this month, the South Australian ratio was fourth worst in the country behind the Northern Territory (43 times), Queensland (23 times) and Western Australia (21 times).

Aboriginal children are also more likely than non-Aboriginal children to receive a formal rather than informal caution when they come in contact with police.

SA Police data obtained by InDaily shows between November 2018 and June 2019, over a quarter of all formal cautions issued to children were handed to Aboriginal young people, despite Aboriginal children representing less than five per cent of South Australia’s total child population.

The latest report from the Youth Training Centre Visitor shows Aboriginal children also represent over half of detainees at the Adelaide youth detention centre, known as Kurlana Tapa.

A 2015 analysis by the SA Council of Social Service found that if the rate of detaining Aboriginal young people was the same as the general child population, there would be fewer Aboriginal children in the state’s juvenile justice system, saving the state budget over $12 million each year.

Change the Record co-chair and Aboriginal Legal Rights Movement CEO Cheryl Axelby said lifting the age of criminal responsibility to at least 14 years would keep younger children out of prison, helping to break the cycle of repeated incarceration from an earlier age.

She said she had heard national reports of Aboriginal children in out-of-home care as young as 12 years old being issued with fines for breaching social distancing orders during the COVID-19 pandemic.

“This kind of aggressive, punitive ‘tough on crime’ approach to our extremely young children is both absurd and deeply harmful,” she said.

“Our children deserve the same support, care and opportunities as every other child – and they don’t get that from inside a prison cell.”

South Australia’s Aboriginal Children’s Commissioner April Lawrie urged Chapman to make South Australia the first jurisdiction in the country to lift the age of criminal responsibility. 

She said there was “nothing stopping” the State Government from acting before a national decision, to put an end to what she described as a “cruel” practice of detaining young children.

“Often when a jurisdiction takes the lead, other states and territories follow and South Australia, even though we are a small jurisdiction, is seen as a jurisdiction where you can do things progressively,” Lawrie said.  

“We could and we should show the way because that’s our reputation – particularly with Aboriginal affairs.”

SA Greens MLC Mark Parnell yesterday introduced a Bill into the upper house to lift South Australia’s age of criminal responsibility to 14.

He told parliament it was “well past time” for the Government to listen to “the growing chorus of voices calling for our state to get behind the international campaign to raise the age of criminal responsibility”.

“The incarceration of children in Australia is a hidden plague upon this land,” he said.

“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.”

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The Bill comes as peak groups including the Australian Medical Association, the SA Guardian for Children and Law Society of SA also throw their support behind lifting the age of criminal responsibility. 

In a letter to Chapman this month, SA Law Society president Tim White wrote that an increase in age of criminal responsibility to at least 14 years would bring the state into line with international human rights standards and obligations.  

He said it would also bring SA into step with medical consensus regarding child brain development.

“Recent Australian research has shown that children who first encounter the justice system by the age of 14 are more likely to experience all types of supervisions in their later teens, particularly the most serious type – a sentence of detention,” White wrote.

“This data is particularly troubling given the high incarceration rates of South Australian Indigenous children and young people.

“An increase in the minimum age of criminal responsibility will not only lead to a number of positive benefits for children and young people, but will also result in cost savings in the criminal justice system.”

Meanwhile, the Australian Medical Association claims the incarceration of children is “unacceptable”, as many are the victims of abuse and neglect and have mental health conditions, cognitive impairments and other significant medical challenges. 

But Chapman said there were “differing opinions across the community” about lifting the age of criminal responsibility and the State Government would take no action until the national review was handed down in November.

“In Australia, for children between the ages of 10 and 14, the common law presumption of doli incapax applies,” she said.

“This is a rebuttable presumption that the child does not know the difference between right and wrong, and is incapable of forming the mental element of an offence. 

“While I understand there are differing opinions across the community about this issue, I think it’s important to first see what the recommendations are of the review before making any decisions.

“It would be preferable for there to be a uniform position nationwide in relation to this issue, and I look forward to discussing this issue with my Federal and State counterparts later this month.”

Shadow Attorney-General Kyam Maher said Labor did not yet have a position on lifting the age of criminal responsibility.

Centre Alliance MP Rebekha Sharkie was last year unsuccessful at carrying a Private Member’s Bill she put to the federal parliament in October to lift the national criminal age to 14.

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