Govt considers raising age of criminal responsibility as more tough new laws proposed

The state government will look to raise the minimum age of criminal responsibility and has today proposed the “toughest maximum penalties in the country” for those that recruit children into criminal activity.

Jan 24, 2024, updated Jan 24, 2024
Attorney-General Kyam Maher. Photo: Tony Lewis/InDaily

Attorney-General Kyam Maher. Photo: Tony Lewis/InDaily

Attorney-General Kyam Maher today announced the government would consider raising the minimum age of criminal responsibility (MACR) from 10 to 12 years of age.

Under the proposal, children under 12 would still be held criminally responsible for murder, manslaughter, “causing serious harm” and rape. However, where children demonstrate other “dangerous or harmful behaviour”, they would enter a three-tiered “alternative diversion model” that would include early intervention programs such as rehabilitation, mediation sessions, and more intensive support.

The proposal falls short of what advocates have been proposing, while the Opposition is sceptical about raising the age at all.

The Raise the Age campaign, which delivered the Attorney-General a petition with just under 12,000 signatures in 2022, was agitating for the minimum age to be 14. The proposed age is also two years below the MACR of 14 supported by the United Nations.

The new MACR would retain police investigative powers and the ability to prosecute children under 12 in certain cases where these alternative avenues have repeatedly failed.

In the government’s discussion paper on the proposal, it has committed to “a review of the MACR after two years of the age being raised to assess if any changes are warranted”.

The paper also contemplates setting up a network of “places of safety”, where children younger than the MACR can be taken by first responders, including police, if they are engaging in behaviour that is harmful and it is not possible or safe to return the child to their parent or guardian. It is proposed children would remain at this “place of safety” for up to 24 hours.

“The intention is to prevent immediate harm and allow time for longer-term arrangements to be made for the child,” the paper reads.

“This may mean the child protection system being activated, including early intervention services, if those legislative thresholds are met.”

Further, for children demonstrating “extreme or repeated harmful behaviour”, the paper proposes an option of last resort permitting the criminal prosecution of the child.

Consultation has opened on the proposal for raising the age of criminal responsibility, with a discussion paper available on the state government’s YourSAy website.

“The evidence shows that the safety of the community is jeopardised when we put vulnerable children into the criminal justice system, making them more likely to reoffend as young people and graduate to adult offending,” Maher said.

“We know that when a young person has contact with the criminal justice system, they’re more likely to become entrenched in the criminal justice system, leading to a cycle of recidivism that is rarely broken.

“Getting the supports in place to divert young people before they become a permanent fixture in the system will ultimately enhance community safety by addressing the root causes and preventing future offending.”

The SA Greens welcomed the move, but said the government should commit to raise the age to 14 “in line with international standards”.

“While this is a welcome first step, the government must go further and commit to raising the age to 14. Both the ACT and Victoria have made this commitment. Twelve simply isn’t good enough and falls short of the recommendations of the UN Committee on the Rights of the Child,” Greens MLC Robert Simms said.

“While a discussion paper on this important topic is of course welcome, the Government must bring legislation to the Parliament as soon as possible.

“In South Australia, children continue to languish in prisons, exposing them to trauma and harm and pushing them down a path that often leads to criminal behaviour in adulthood. The state government must step up and commit to raising the age of criminal responsibility to 14.”

Similarly, the Guardian for Children and Young People Shona Reid welcomed the development but said she was “disappointed that our government is only proposing to raise the age to 12”.

“This is an important step in the right direction. It will help protect our children from harm, help them grow and develop, help guide them to better choice and it will help our communities be stronger and safer – now and into the future,” she said.

“Whilst I welcome this first step, I have to say I am disappointed that our government is only proposing to raise the age to 12. My position has been firm, and it remains so. The age of criminal responsibility must be raised to at least 14 years, without exception.

“The evidence is clear and our obligations to children’s rights is clear.”

Her comments follow the release of a report published by Reid, which revealed in 2022-23 there was a total of 39 children under the age of 14 detained in South Australia, with five of those under 12 years.

“I don’t want to undermine the importance of this moment, because any child who is spared from the experience of youth detention at such a young age is good news for our communities,” she said.

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“But I also don’t want us to forget about those children who are 12 and 14 years old, who also might still be in primary school or just entering high school. These children should not be subject to police cells or detention centres.

“Children under the age of 14 do not fit within the purpose and structures of the criminal justice system and we know that exposure to this system adversely impacts their health, wellbeing and long-term outcomes.”

South Australian Council of Social Services (SACOSS) CEO Ross Womersley also welcomed the proposal, but said “the reality is that the age should be raised to 14”.

“However, we think that it’s very important that the government is getting on with this work,” he told InDaily.

“We also do want to be able to see that there are plans in place to ensure the support that some of those young kids, who find themselves currently caught in our juvenile justice system, are getting assistance and support that they require.

“We will be joining with other people in pushing for the government to really move to 14 rather than 12.”

Opposition leader David Speirs said the government would “have to convince me and the people of South Australia that that is warranted and that there is evidence to show that that won’t create problems for our criminal justice system and for our police”.

“We’ve got a real challenge, a real problem and a real concern in South Australia about significantly rising crime,” he said.

“So the government really should concentrate on that rather than open up something that might lead to adverse outcomes when it comes to crime rates in this state.”

In Tasmania, the criminal age of responsibility is 14, while Victoria has committed to raising the age to 12 this year and to 14 by 2027. The Northern Territory and Australian Capital Territory both raised the age to 12 last year, and the latter is aiming to push it further to 14 in 2025.

When asked at a press conference this morning about why South Australia would not pursue a MACR of 14, Maher said there were “different views” internationally and in Australia on what the age should be.

“It is not something that we’re saying we’re going to implement – it is a discussion paper to get community feedback,” he said.

Tough new laws proposed for recruiting children into crime

One day on from announcing “the most draconian laws in the country” for repeat child sex offenders, the state government has proposed law reform to legislation governing those that recruit children into criminal activities.

Maher said the proposed laws carry the “toughest maximum penalties in the country”.

The reform would alter laws around aiding and abetting which allow adults to be prosecuted as if they were the ones committing the crime when accessories to crimes committed by children.

Separately, any individual over 21 years old who attempts to have a child under 18 carry out a serious criminal offence on their behalf – regardless of whether the child actually carries out the act or is under the minimum age of criminal responsibility – would face maximum a maximum jail term of 15 years under the government’s proposal.

Legislation on these proposals is being prepared and will be consulted on before being introduced to state parliament.

“It’s important that tough penalties are in place to send a message to those who may try to circumvent the law by getting children to do their dirty work,” Maher said.

“We are ensuring that those who seek to exploit kids for illegal purposes can feel the full force of the law, by changing the law about accessory liability and establishing a new criminal recruiting offence – the toughest anywhere in the country.”

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