Motion: Minimum Age of Criminal Responsibility

Tuesday 26 October 2021

[3.28 p.m.]

Ms WEBB (Nelson) - I move -

(1) That the Legislative Council notes:

(a) The United Nations Convention on the Rights of the Child requires countries to establish a minimum age below which children are presumed not to have the capacity to breach the criminal law, and that countries should work towards a minimum age of criminal responsibility of 14 years or older; and

(b) the global median minimum age of criminal responsibility is 14, while the minimum age of criminal responsibility in all Australian jurisdictions is 10 years.

(2) That the Legislative Council further notes:

(a) Groups including, but not limited to, Amnesty International, the National Aboriginal and Torres Strait Islander Legal Services, Australia’s National Children’s Commissioner, the Australian Medical Association, the Royal Australian and New Zealand College of Psychiatrists, and the Royal Australasian College of Physicians have called on governments to raise the minimum age of criminal responsibility to at least 14;

(b) in Tasmania, groups including the Commissioner for Children and Young People, the Law Society of Tasmania and the Tasmanian Council of Social Service (TASCOSS) agree that the minimum age of criminal responsibility should be raised to at least 14 years;

(c) evidence demonstrates that, at the age of 10, a child's brain is still developing, particularly as to reasoning, impulsivity and consequential thinking;

(d) evidence shows that many children involved in the criminal justice system come from disadvantaged backgrounds and have complex needs better addressed outside the criminal justice system through a developmentally appropriate, trauma-informed and culturally safe early intervention model that supports children in their families and communities; and

(e) evidence also indicates that the younger children are when they first encounter the youth justice system, the more likely they are to reoffend.

(3) That the Legislative Council further notes:

(a) The Council of Attorneys-General initiated a working group on the minimum age of criminal responsibility in November 2018, but have not reached a nationally agreed way forward; and

(b) notwithstanding the national working group discussions, the age of criminal responsibility is entirely a matter for the state, and there is no reason why Tasmania cannot proceed to raise the age of criminal responsibility in this state.

(4) That the Legislative Council call on the Tasmanian Government to:

(a) Raise the minimum age of criminal responsibility to at least 14; and

(b) commit to the principles of justice reinvestment, divert young people - particularly those under the age of 14 - away from the youth justice system into programs and services that address the underlying causes of their behaviour, and implement a program for Aboriginal youth led by Indigenous people.

Ms ARMITAGE (Launceston) - I thank the member for Nelson for raising this matter. Many arguments exist as to how lower ages of criminal responsibility entrench the disadvantage of already disadvantaged groups of people.

In the Australian context, for example, the Australian Human Rights Commission emphasises that raising the age of criminal responsibility would help to decrease the rate of over‑representation of Aboriginal and Torres Strait Islander children under youth justice supervision and detention.

The AHRC also states that Aboriginal and Torres Strait Islander children aged between 10 and 17 are 17 times more likely to be under supervision than non‑Indigenous children. The reasons for this over‑representation, according to the AHRC, include legal and policy factors, socio-economic factors, cultural displacement, trauma and grief, alcohol and drug misuse, cognitive disability and poor health and living conditions.

Would it not be logical to target issues like drug and alcohol misuse, poor health and living conditions? Perhaps lowering the age of criminal responsibility would be one lever of many that needs to be recalibrated to have better results for youth offenders. However, I do not necessarily see a cause and effect relationship between lowering the age of criminal responsibility and better outcomes for young people at risk of committing acts that result in them being placed under supervision or detention. That is something I want to understand better.

It could also be argued that keeping a lower age of criminal responsibility is not in line with our understanding of how young people's brains develop. After all we have an age of consent and an age at which people can vote, drink, gamble and smoke, or drive a car, amongst many other things. We have these ages because we as a society have made the collective decision that at those ages people are considered to have the capacity to make certain choices. An 18-year-old is considered to be old enough to understand the risks associated with smoking or drinking alcohol, for example, and should they choose to do it must necessarily accept responsibility for it.

What we might consider coming of age is the time at which we accept that people have full autonomy and agency and the ability to make risk‑based assessments of their choices. It is the age at which we have all agreed at a macro level at which parents and other people responsible for a young person ceased to be able to legally have any influence over decisions the other person can make. The AHRC states that the age of criminal responsibility at 10 years does not align with current research into brain development. In their words, 'children have not developed the requisite level of maturity to form the necessary intent for criminal responsibility.' In criminal law the mental element of commission of any offences requires the person was acting both voluntarily and intentionally. These are often very difficult and specific elements which need to be established beyond reasonable doubt. For fully developed adults there are often arguments about whether a person was acting under the influence of drugs or alcohol, in a psychotic state or even sleepwalking. Any of these factors can diminish a person's ability to act voluntarily and intentionally.

It may then follow a person whose brain is still in the state of developing necessarily lacks the ability to form the requisite intention to commit a crime. More practically, it could also mean children lack the capacity to properly engage with the criminal justice system, resulting in a propensity to accept a plea bargain, give false confessions or fail to keep track of judicial proceedings.

I acknowledge for most people these arguments are very academic and hold little bearing outside a court room. But we do need to consider community expectations when it comes to assessing the responsibility of people when they commit a criminal offence. There are compelling reasons some young people should be put under supervision or in detention where a risk to the public, to animals, property are factors in their offending. I have been an independent person for many, many years, I would say over 20 years, probably many more. I have seen a lot of young people come through the police station, and the youngest I have had was 10. This little boy lived with his mother and grandfather. His grandfather was an alcoholic and his mother was an alcoholic also. There was no father. He used to escape when his grandfather and mother had either gone to sleep or fallen into a stupor. He, along with his little friend, would go to the local bottle shop or car park, if there was a hotel. They would smash the windows of the cars, break into the cars and steal whatever they could find. That was just something they did regularly. He was banned from every shop.

It was a very sad situation when you consider there was not a shop or store in the small town where he lived he was actually able to go to. He was not allowed to go to school. He could not go to any of the stores because he caused grief and trouble. The police would always call me in when they had him because I started to develop a rapport with him because they had sent him so regularly, which is also really quite sad. Even sadder, he said to me one day, why am I here because it is not my fault? My friend - I cannot remember his friend's name - is the ringleader, he is the one who tells me to do it. I asked the police, why have you not brought his friend in? They said, no, because he is only eight.

You appreciate some of these children, as I think the member for Nelson has said, do not really have much of a chance. That little boy time and time again - I do recall one Saturday going in to see him. Sometimes I would go in of a night, sometimes the early hours of the morning, sometimes it would be weekends. One Saturday he came in, he had paint all over his fingers. The police were asking him, why do you have paint? I thought, gosh, he said he had been doing something good. 'I have been helping the teacher', he said. 'We have been painting, I have been back at school.' I thought that was really great. But unfortunately, I was called in again on the Sunday. He actually had not been helping the teacher, he had been throwing paint around the classroom, he had broken into the school.

It was a terribly sad situation. Each time I had seen him he would say he was not going to do it again. The really saddest situation was the last time I saw him on a Sunday and I have not seen him since. He was actually going to Ashley. That was his first time. He was 10 years old. He had offended again and again. They did not know what else to do with him. He was being sent to Ashley. As I said, that was probably 10 or more years ago now, the last time I saw that little boy. I have not seen him since. I would only hope, because the police did call me in regularly to see him, maybe he had decided not to go to Ashley, not to continue. But unfortunately, the home life he lived in made it unlikely. I think that is one of the sad things I see.

I could stand here for hours actually telling you some of the cases I have had over the period of time. But one other one I find very sad was a young boy of 15. He did not commit any bad offences, not like some you read with knives and fire and arson. He did not commit bad things but he did steal. He lived with his grandmother because he did not get on with his mother, his parents were split up. I saw him because he had been charged by the police with breaking curfew 11 times. I must admit I would tend to act a bit like their mother and I would be there and say, 'why on earth did you do this, how could you do this?' When he was finally picked up by the police he gave a false name. I said to this boy, 'how could you break curfew 11 times?' He said the first time he was not there and then when the police came each other time, because he knew he was in trouble for the first time, he actually hid. He was home the other times, but was so afraid of being in more trouble he hid each time and he would not show himself.

When the police saw him, he knew he was in trouble and gave a false name. The sad part about it was I asked him the school he went to, and I said, 'what school do you go to and what do you want to do? Because you are under 18 and these things will not be on your record, you can start a new life'. He told me he had been to a primary school and I said, 'no, you are 15 what high school do you go to?' He said he had never been to high school. He had only ever been to school at Ashley, he had no friends that were not Ashley children because other people did not want him to go around with their children. He said, 'I do not have any other friends apart from people at Ashley and I have never been to high school'. The saddest part was he said to me there is no hope for me. It just makes you feel like crying. I said to the police at the time, 'what can you do, can you send him somewhere? Can you get some help?' They said they did not have the ability to send him anywhere.

After we had finished with him, after I had watched him get fingerprinted and photographed and DNAd he was then put outside and on his merry way, such a really sad situation.

Ms Forrest - It is a complete failure.

Ms ARMITAGE - It is so sad. Like the member for Hobart I have been involved with Whitelion also and I have been to Ashley on a number of occasions and, yes, you go through gate after gate after gate, there are no metal knives or spoons and everything is foam. The one thing I really remember from Ashley, there was a girl there I was talking to. She had obviously done some things wrong. The interesting thing was I was walking through our Launceston Mall and I saw her and I went up and said hello to her. It was like I had struck her with a hot iron, it was like, how can you speak to me? As if she was shocked I had remembered her. I thought that was really interesting because they have such low self-esteem. A lot of these young people do not expect you would speak to them if you did not have to - you might when you came to Ashley but why would you speak to them when you see them out in the community? That was so sad they do not consider themselves important.

As I was saying to the member for Nelson earlier, there are maybe some young people that perhaps need closer supervision than some of the others. I have been involved in these situations for a very long time and find most of them very sad. It is worth considering the practical implications of holding young people criminally responsible for their actions and as the AHRC points out, younger cohorts are more likely to reoffend if they encounter the justice system. Between 2011 and 2012, children who were first subject to supervision under the youth justice system due to reoffending when aged 10 to 14 were more likely to experience all types of supervision in their later teens, 33 per cent compared to 8 per cent for those first supervised at older ages.

We want the system to work. We want crime rates to go down and young people to either never offend in the first place or if they do to never offend again. If detention and supervision arrangements that currently exist indicate reoffending is more likely that suggests we could perhaps look at changing what those detention and supervision arrangements actually are.

It is interesting in other countries such as Sweden and Norway the age is 15 and they are two countries we often hold up as great examples.

Ms Rattray - As a beacon.

Ms ARMITAGE - We do hold them up as a beacon particularly, for the young people and preschool. I can recall when we had the Education Act we were often holding up Sweden.

Ms Rattray - Finland as well.

Ms ARMITAGE - South Korea - 14, Vietnam - 14, Russia - 14, Japan - 14. How sad, to see Iran - the age for girls is 9 and the age for boys is 15. It is extremely sad. We need to assist these children and their families, as in an ideal world I agree that no child should enter the criminal justice system. However, when attending the Police department as an independent person, I am often amazed to see that no help is offered or services provided to these children. They are generally charged and bailed to attend court, or held for court appearance and then transported to Ashley.

Some of them are tough nuts, I have to admit. I can recall one in his maroon tracksuit who had broken out of Ashley. He had done all measure of things and he was articulate, he looked good and he spoke well. He said to me, 'I just want to go to the big house. It is where my family members are'. He was probably about 15 and he could have done anything he wanted. I said, 'you could do anything you want. You are really good at speaking. Why did break out of Ashley? You have been in this car accident with your young brother.' He said, 'I just want to go to the big house, Miss.' When they call you Miss, you know they have been institutionalised for a long time. Obviously, he came from a family that had been incarcerated as well. He saw that as something he was looking forward to and I have to say he got his wish. I have seen his name many times in our newspaper over the last years, and it is sad. We will never know whether that would have changed if he had not gone into that system as a small child or a younger person. I hope his brothers have not followed him down that path.

In fairness, the police officers I have been involved with at the station treat the young people in a fair manner, without exception. They often get them McDonalds or their favourite drinks. They do look after these young people. On occasion I have berated them, thinking these young people have committed a crime and sometimes the police are offering them all sorts of inducements. They tell me it is to get them to admit to some of the crimes they have committed. It is a pretty sad situation.

I acknowledge that changing the age of criminal responsibility does not mean there aren't any consequences or accountability for one's actions. However, it means we do not look at children as criminals, but recognise that young people often come from extremely difficult backgrounds and there are often other reasons for their actions. Ideally, I believe we should be assisting children before they reach the courts or the youth justice system and break the cycle. I am sure early intervention would prevent many of them starting on this path. However, it will not work for every young person. Unfortunately, there is sometimes a problem when a child at risk, who is in diversionary care, is then sent back to the very home that caused the problem and where the risks are real. I acknowledge the comments from the member for Murchison that often people don't want to send children back to the homes where they know they are at risk; but there is no alternative.

We need to start work earlier with many of these families and help the parents as well. To my mind, we often don't start early enough in assisting our young people. We need to focus on sufficient funding for many of the necessary services as our children are our future. That is all our children, not just the ones that behave. These other children live with us too, and we cannot have a 'them and us'. We all need to be together and we all need to be supporting.

In closing, I thank the many different groups and organisations that briefed us, and I commend the member for Nelson for bringing the motion forward.