Rebekha Sharkie (Mayo, Centre Alliance) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

The minimum age of criminal responsibility is the minimum age below which the law determines that children do not have the capacity to form criminal intent.

The median age of criminal responsibility in the international community is 14. In most European countries it is between 14 and 16. Countries such as China, Russia, and Sierra Leone have a minimum age of 14, while Canada and Scotland are both set at age 12.

In Australia the minimum age of criminal responsibility across Commonwealth, state and territory legislation is 10. Our laws permit the arrest and detention of a child in year 4 and taking them away, often far away, from their family, prior to a finding of guilt.

Australia is universally condemned by the international community for this.

The bill I am introducing today increases the age of criminal responsibility for Commonwealth offences from 10 to 14 years of age.

Amnesty International's report entitled The sky is the limit demonstrates that youth detention is not a place where children will grow into mature and healthy young adults.

Detention is not rehabilitating young offenders; it is only increasing the risk of reoffending.

The report notes that children who are arrested before the age of 14 are three times more likely to reoffend as adults, compared to those arrested after the age of 14.

In part this is because children under the age of 14 are making decisions using the part of the brain that is connected to emotions and aggression, and are unlikely to comprehend the consequences of their actions.

That is why we do not let 10-year-old children drive cars, drink alcohol, have a Facebook account or vote.

We imposed these limits because we as a society decided that young children are not capable of making rational decisions. We accept the medical evidence that says the brain development of young children limits their capacity.

And yet, as the law currently stands, we can hold a 10-year-old child criminally responsible for their actions. We can, and, sadly, we do.

According to data released by the Australian Institute of Health and Welfare, in 2017-18 there were 600 children aged between 10 and 13 in detention.

In addition to the usual limitations placed on the developmental progress of young children, both trauma and prolonged stress will also have a negative impact on brain development. Trauma can include neglect, poverty, removal from family structures and exposure to violence or abuse.

It is a sad reality that Indigenous children are more likely to experience trauma than non-Indigenous children.

Aboriginal and Torres Strait Islander children are also more likely to suffer from fetal alcohol syndrome disorder, which results in abnormalities in cognitive, behavioural and social functioning, thus increasing the risk of coming into contact with the justice system.

Over a third of all children in WA detention were diagnosed with FASD, while in the Northern Territory the recent royal commission sought to address the issue by recommending that all children be screened for the disorder upon entering out-of-home care and that police receive specialist training on the effects of FASD.

The age of criminal responsibility is an issue that disproportionately affects children from Aboriginal communities. They are 23 times more likely to be in detention than their non-Aboriginal peers.

While only five per cent of children aged between 10 and 17 are Indigenous, more than half of all children in detention on an average day in 2017-18 were Indigenous.

Children should be in classrooms; they should not be in custody.

But the Just Reinvest program operating in Bourke, NSW has proven that prison need not be a rite of passage for children.

For those who remain unconvinced, I urge you to consider the economic arguments against youth detention. Earlier this year the Productivity Commission considered youth justice in the context of their Report on government services 2019.

The commission found that the average cost of community based supervision across the states and territories in 2017-2018 was $164 per day, per young person.

The average cost of detention based supervision per young person, per day was $1,455.

An average cost of holding one child in detention for one year is over half a million dollars.

If we multiply that by 600, being the number of 10- to 13-year-olds detained, it comes in at $318 million.

Modelling undertaken by PIC, the Indigenous consultancy branch of PwC, predicts that the cost of Indigenous incarceration will grow to $19.8 billion by 2040.

But, if we replace youth detention with holistic case management, cognitive behavioural therapy and other appropriate supports, modelling shows that recidivism rates will decline and deliver a saving of $10.6 billion by 2040.

Next month the Council of Attorneys-General will hand down their recommendation on whether to raise the age of criminal responsibility.

The increase I propose in the bill is consistent with the position of the UN Committee on the Rights of the Child and was specifically recommended to Australia by the UN committee in their concluding observations released in late September this year.

Finally, I'd like to thank the Change the Record coalition, Amnesty International, the Human Rights Law Centre, the Justice Reinvestment Project, the Law Council of Australia, the AMA and the many other campaigners who are working to draw attention to this matter and the way we approach young people—children—in detention in this country.

The UN has spoken. We were all aghast when we saw the footage from Don Dale. Children as young as 10 were in that situation. One of the recommendations was to lift the age of criminal responsibility. Two years on, we have done nothing in this place. It is time for this place to lead the nation; it is time for this place to act.

Mr Speaker, I would like to give my remaining time to the member for Warringah.

Tony Smith (Speaker) Share this | Link to this | Hansard source

Is the motion seconded?

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

I second the motion. I rise to speak in support of the Crimes Legislation Amendment (Age of Criminal Responsibility) Bill 2019, and I commend the member for Mayo for introducing this very important bill and attempting to address an important issue.

On 20 November this year, we will celebrate the 30th anniversary of the Convention on the Rights of the Child, which Australia is a proud signatory to. Article 37 of the convention states that children who break the law should not be treated cruelly, should not be put in a prison with adults and should be able to keep in contact with their family. Article 40 states that prison sentences for children should only be only used for the most serious offences. The minimum age of criminal responsibility should be raised to 14. It's not surprising that the UN Committee on the Rights of the Child has called on Australia to do so.

Ten is too young. Think of a child in year 4. Think of the children who visit Parliament House. Generally, they come and visit their members when they are in year 5 or year 6 in primary school. We are talking about children younger than those children. In the family law system, a child's view, whilst taken into account, is generally not given significant weight until around 13 or 14 years of age. Yet we are holding them criminally responsible at 10. The medical science is clear: their brains are still developing. Their ability to reason and think through the consequences of their actions is seriously impaired and impacted. As a mother of teenagers, like many in this place, I have seen firsthand the changes our children go through between starting school and adolescence. It beggars belief that we are holding them criminally responsible at 10.

Criminalising children disproportionately harms those who are already the most disadvantaged, especially Aboriginal and Torres Strait Islander children. When children are treated as criminals and jailed or detained, it traps them in a cycle of disadvantage from which many never escape. Once detained, young children are more likely to reoffend, and less likely to complete their education or find employment. Our system is failing our most vulnerable and disadvantaged children. We should be fixing the system and supporting these children, not punishing them for that failure.

Australia is out of step with international standards. The median minimum age of criminal responsibility across the world is 14. Around 600 children below the age of 14 are imprisoned in youth detention centres each year. Seventy per cent are Aboriginal and Torres Strait Islander children. This reinforces the systemic disadvantage already faced by Aboriginal and Torres Strait Islander children, and must end. Instead of criminalising and jailing young children, we should be addressing the underlying causes of crime, intervening early and diverting children from pathways leading to crime.

There are many wonderful examples throughout Australia of charitable organisations working with communities and governments to do just that. We have the Out-Teach Mobile Education program run by Save the Children, who are doing fantastic work. As parliamentarians, we need to support their work, and the best way for us to do so is to pass the member for Mayo's bill. I thank the House.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that this bill be now read a second time. The time allotted for this debate has expired. The debate is adjourned and the resumption of the debate will be made an order of the day for the next sitting.