Children, Youth and Families (Raise the Age) Amendment Bill 2021
I move:
That the bill be now read a second time.
I am humbled to be introducing this very important bill.
Children as young as 10 years old are not criminals. They do not belong in prison. Not in Victoria. Not in Australia. Not anywhere in the world.
This isn’t just a matter of personal opinion, or of intuition, but a fact.
Yet the current legislated minimum age of criminal responsibility in Victoria is just 10 years old.
This law is an affront to contemporary understandings of childhood wellbeing and development.
Because we know that the impacts of criminalisation can be catastrophic to their future wellbeing.
This is why the leading Australian and international experts in the fields of science, medicine and law, along with the United Nations Committee on the Rights of Children, and many countries, now explicitly specify that 14 years and no younger must be the absolute minimum legal age of criminal responsibility.
This wasn’t known when the legal age was set at 10 years in Victoria. Back then they had to go on the medieval traditions of English law and, likely, the fact that 10 is a nice round number at the base of the decimal numeral system.
But today if we continue to attribute criminal intent to children we breach the rights of equality before the law and for the protection of children in the Victorian charter of human rights. We knowingly facilitate injustice.
Aligning our laws with our understanding of children’s wellbeing and with minimum international human rights standards is, of course, reason enough to urgently raise the age of criminal responsibility in Victoria.
However, this isn’t only a matter of evidence and international reputation.
We should also analyse what the outcomes of criminalising children under 14 have been. We might ask:
• Has the current age of criminal responsibility actually made children understand and be accountable for their behaviour?
• Does it break the intergenerational cycle of crime, poverty and disadvantage?
• Is it cost effective?
• And finally, does it reduce the frequency and severity of criminal offending, the number of victims, and make us safer?
We now have decades of real-world information and a sufficient sample size of empirical Victorian data to answer these questions.
And the answers are unequivocal.
The current age of criminal responsibility in Victoria does not work by any measure. What’s more, it makes these problems much worse because: it comes at an astonishing financial cost; it causes irreparable damage to the health and future wellbeing of the most disadvantaged children in Victoria; it further contributes to the shameful intergenerational family trauma and the resultant over-incarceration of First Nations Victorians; and, rather than imbue accountability and responsibility for offending, it is empirically demonstrated to drive children to higher rates of more serious and violent adult crime that is felt by the whole of society.
The younger we criminalise children in Victoria, the more likely these children are to reoffend, to reoffend violently, to continue offending into the adult criminal jurisdiction, and to be imprisoned in an adult prison.
And by ‘likely’ I am talking about reoffending rates of up to 90 per cent for this cohort.
I do not mean to be critical of those who work in youth justice by citing this failure, as they truly have an impossible job, because this is systemic failure, not the kind that can be turned around with a bit more effort, money and better prison infrastructure.
This is the kind of failure that demonstrates that it is simply not feasible to try to respond to children who have experienced significant trauma or disadvantage in a punitive criminal justice environment.
Children under 14 are in the system not because of some inherent criminal desire, or a failure to respect authority. Rather, we know that in Victoria these children are themselves normally the victims of serious trauma, abuse and neglect. We also know that:
• They are children whose parents are six times more likely to be incarcerated.
• They are more often than not going to be institutionalised children, subject to statutory child protection orders, and out-of-home care.
• They are children who have limited education and school attendance, and early exposure to drug and alcohol abuse, including before they were born.
• They have exceptionally high and disproportionate rates of serious pre-existing health conditions, and cognitive and physical disabilities.
• In our wealthy society, they have likely lived their lives in poverty and come from the least affluent regions of the state.
These are the characteristics of a child under 14 in the criminal justice system in Victoria. And if these social determinants sound all too familiar, then it may be because First Nations children, with complex ongoing historical trauma associated with colonisation, are also disproportionately represented.
The challenging behaviours of these children are clearly a symptom and not a cause, and therefore only a new model that is entirely focused on addressing these underlying issues can ever be effective.
What is the alternative model?
The alternative model means that after raising the legal age of criminal responsibility, children under 14 will always be dealt with in an age-appropriate setting, not a criminogenic setting that turns them into adult offenders.
It means treating children in a therapeutic and not a punitive environment that is focused entirely on the health, education and physical, cultural and emotional causes of their behavioural problems.
Once again this alternative model is not simply theoretical, but is practically effective, and based on programs that already exist both here and in other jurisdictions. We already know that the current discretionary diversionary programs in Victoria work—with as many as 90 per cent of children who engage in these programs not reoffending.
The non-statutory aspects of raising the age will involve expanding these alternative programs so that all children under 14 will always receive the most effective response and support.
Bill summary and structure.
I will now summarise the bill, and outline its structure.
The effective age of criminal responsibility in Victoria is established by section 344 of the Children, Youth and Families Act 2005 (the CYF Act) that states: ‘It is conclusively presumed that a child under the age of 10 years cannot commit an offence’.
Part 2 of the Children, Youth and Families (Raise the Age) Amendment Bill 2021 will raise the age in section 344 to state that: ‘It is conclusively presumed that a child under the age of 14 years cannot commit an offence’.
In simplest terms, this means that children aged 13 or younger can no longer be charged with a criminal offence or be subject to criminal law proceedings. Children aged 14 years and above may continue to be charged with criminal offences.
This amendment effectively makes redundant the current rebuttable common-law presumption, known as doli incapax, that a child between 10 and 13 years cannot commit a crime because they are incapable of differentiating between right or wrong.
Although some claim that this presumption offers sufficient protection to children in criminal matters, there is legal criticism that its operation and interpretation by the courts is problematic, and is a reason why peak legal organisations including the Law Council of Australia, amongst others, support raising the age to 14 years.
We also know that in Victoria the majority of children aged 10 to 13 that are charged are held in custody on remand, but it is also these 10- to 13-year-old children that are the most likely to have their charges later dismissed by a court upholding doli incapax, or when they are withdrawn by prosecutors. In fact, across Australia most children under 14 in custody will never be found guilty of the offence.
What happens to these young children imprisoned but not found guilty? I am not sure that anyone can adequately answer this question. But it is likely that the factors that have led to children being charged may very well not be addressed, because children whose charges are withdrawn or dismissed are no longer a concern of the criminal justice system.
Doli incapax effectively allows children to experience the worst aspects of the criminal justice system, including invasive criminal procedures and pre-trial detention, regardless of their guilt, and then dumps them back into the community. This is not a protection, it is a significant part of the problem.
Abolishing the common-law presumption will mean responding to children’s behaviour will not be contingent on whether guilt can be established in a criminal setting. All children under 14 will consistently receive the most effective therapeutic treatment to address their behaviour.
Part 2 of the bill provides that the bill has a commencement date of 7 November 2022, a date with symbolic significance, coinciding with the abolition of public drunkenness offences, but more importantly allowing sufficient time for the alternative therapeutic, community-based programs to be properly embedded as the alternative to the criminal justice system for all children aged under 14.
Significantly, this bill will not remove consequences for children who do something wrong when they are aged between 10 and 13. Rather it shifts responsibility for implementing the consequences from the criminal justice system to community-based agencies and programs.
The delayed commencement makes sure these agencies are resourced and ready to provide the necessary therapeutic environment and interventions to ensure the success of this reform. This includes intensive interventions providing housing, treatment of mental health and addiction problems, specialist medical treatment, and education support. Aboriginal-operated organisations will provide these culturally appropriate programs for First Nations children aged under 14 years.
Part 3 of the bill will make consequential amendments that prevent the undertaking of forensic police procedures on children under 14 years, such as fingerprinting and DNA sampling, in the Crimes Act 1958, as well as updating the definition of a child in the Fines Reform Act 2014 and the Infringements Act 2006.
For clarity, the bill also contains transitional arrangements providing that raising the age of criminal responsibility is not retrospective, and that children between the ages of 10 and 13 at the time of an offence that is committed before the commencement day can continue to be held responsible in criminal law proceedings. However, in practice it is expected that a discretionary approach will be adopted when considering whether to commence criminal proceedings against children under 14 in the period prior to the commencement day.
Conclusion
Most here are likely aware that a few years ago the Council of Attorneys-General (CAG), consisting of law and justice ministers from all Australian jurisdictions, set up an age of criminal responsibility working group (the working group) in the hopes of establishing a national approach to law reform.
Some may be aware that Australia’s leading legal, medical and social justice organisations made submissions to this working group, among them: the National Aboriginal and Torres Strait Islander Legal Services; the Law Council of Australia; the Australian Medical Association; the Royal Australasian College of Physicians; and, the Public Health Association of Australia. Consistent with the United Nations, all these organisations recommended urgently raising the minimum age of criminal responsibility across all jurisdictions in Australia to 14 years.
I recognise too that the Victorian government previously announced its commitment to only engage in reform on this issue through this national process.
However, we are now aware that the national process, CAG, has failed to reach consensus or conclusion.
This is not surprising, as we know from countless other examples that consistent national law reform in our federation is only achieved when individual states, very often Victoria, set an example for others to follow.
Most other jurisdictions have already announced that they will be heading in their own direction regarding the issue of raising the age, one way or the other.
Victoria must also decide.
What I have said today, is merely the briefest summary of the wealth of evidence and policy work that has already been done on the issue.
I am more than aware that I have not said anything that is not already well known by the CAG, the working group, the Victorian Attorney-General, or indeed, anyone who has cared to examine this issue.
Based on all this evidence, I consider there is only really one conclusion we can possibly make: Victoria needs to raise the age, and Victoria is ready to commit to raising the age.
In fact we were ready yesterday.
The bill is straightforward, and allows sufficient time for the required non-statutory work to be done prior to commencement. The work has been done.
There remains now just a single barrier remaining, the political barrier comprising us, the members of this Parliament.
And while cooperation in politics is rare, recently we have all witnessed and been part of the process to create a legislated spent convictions scheme and to abolish public drunkenness offences in Victoria. So we all know that when some leadership is shown, it is possible for us to stand up and act to overturn decades of political procrastination and empty tough talk on criminal law reform.
But we also are aware of the cost of delay, and that those urgent, evidence-based reforms also came far too late to stop decades of pain and suffering. Tragically, it also came too late to stop some Victorians from dying lonely and preventable deaths.
To paraphrase what the former Attorney-General said last year in relation to the abolition of public drunkenness offences, raising the age to 14 years in this bill is not enough in itself, but it is another small and necessary step on the road to a better Victorian justice system, that is inexorably linked to achieving First Nations justice.
We can put our heads in the sand today but we cannot deny the evidence, the crime data, the economics forever.
Raising the age will have a significant impact on how the lives of the most vulnerable and disadvantaged children in our society will turn out, it will provide more resources to invest in early intervention and crime prevention, and ultimately, it will improve the safety and overall wellbeing of our whole society.
So the decision we have is not really whether to raise the age. It is whether we decide to act now to raise the age, or whether we go home and wait for more cost, more tragedy, and more crime, before returning back here to the same place, but in a worse state than today, to raise the age.
I commend this bill to the house.