Wednesday, 8 February 2023

Bills

Children, Youth and Families Amendment (Raise the Age) Bill 2022

Statement of compatibility

Samantha RATNAM (Northern Metropolitan) (09:54): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Children, Youth and Families Amendment (Raise the Age) Bill 2022 (the bill).

In my opinion, the bill, as introduced to the Legislative Council, is compatible with, promotes, and strengthens, the human rights protected by the Charter.

I base my opinion on the reasons outlined in this statement.

Overview of bill

The purpose of the bill is to raise the minimum age of criminal responsibility in Victoria from 10 to 14 years old by amending section 344 of the Children Youth and Families Act 2005 (the CYF Act).

The bill prohibits the use of solitary confinement in relation to a person detained in a remand centre, youth residential centre or youth justice centre, and requires the Secretary to prepare and publish minimum requirements for meaningful human contact during isolation.

The bill also makes other consequential amendments to the CYF Act, as well as to forensic procedures in the Crimes Act 1958, and fines and infringements in the Fines Reform Act 2014 and the Infringements Act 2006.

Human Rights Issues

In my opinion, the human rights protected by the charter that are relevant to the bill are:

• The right to recognition and equality before the law (section 8)

• The right to life (section 9) and the right of protection of families and children (section 17)

• The rights of children in the criminal process (section 23)

• The right to protection from torture and cruel, inhuman or degrading treatment (section 10)

• Cultural rights, including Aboriginal cultural rights (section 19)

• Humane treatment when deprived of liberty (section 22)

The right to recognition and equality before the law (section 8)

Section 8(2) of the Charter provides that every person has the right to enjoy his or her human rights without discrimination. Section 8(3) provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination, and has the right to equal and effective protection against discrimination.

Laws, policies and programs should not be discriminatory, and you have the right to exercise your human rights without discrimination. This means that you cannot be treated unfavourably because of your personal characteristics protected by the law.

‘Discrimination’ for the purposes of this right is defined under section 7 of the Equal Opportunity and Human Rights Act 2010 to include direct or indirect discrimination on the basis of an attribute, including a person’s age.

To uphold equality before the law, the legal system is required to recognise the different attributes of young children and adults. The evidence in the fields of child development and neuroscience indicates that the frontal cortex of children under 14 is still developing. This means that these children are more likely to act impulsively and with less regard for the consequences than adults.

Therefore, Victoria’s current minimum age of criminal responsibility does not currently recognise the relevant developmental attributes and personal characteristics of children under 14 relative to older children or adults, and I consider that subjecting these children to criminal charges and justice procedures and sanctions represents inequality before the law.

The bill will promote the right to equality before the law by limiting the application of criminal law to persons only of an age where they possess the necessary developmental maturity to understand and to adhere to the law.

The right to life (section 9) and right of families and children to be protected (section 17)

Section 9 of the Charter provides that every person has the right to life and that public authorities must not arbitrarily or intentionally deprive someone of life.

Section 17 of the Charter provides that children are entitled to be protected by society and the State. Section 17(2) states that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

Early contact with the criminal justice system leads to negative long-term health outcomes. Youth detention and incarceration is also associated with higher risks of psychiatric disorders, depression, substance use, and suicide.

In 2019 the Victorian Ombudsman documented the widespread solitary confinement of children in prisons and youth detention, while also noting the unequivocal evidence that such solitary confinement has a profound impact on health and wellbeing of children.

Victorian data shows that the younger the child comes into contact with the criminal justice system, the more likely they are to continue offending into adulthood and the more serious this offending becomes. The ongoing high recidivism and escalation of serious offending of young children who engage with the criminal justice system is also likely to raise levels of victimisation, potentially impacting the right to life in the broader community.

Based on the well established evidence, I consider that the criminal justice system negatively impacts young children’s immediate and future health and mortality, and hence their right to life under the Charter. The bill will promote the right to life under section 9 of the Charter by preventing the damage to the health and wellbeing to children, and potentially the wider community, from young children’s early childhood engagement with the youth justice and detention systems. It will further promote the right to life by prohibiting the use of solitary confinement of young people and by requiring the development of minimum requirements for meaningful human contact during periods of isolation.

I further consider that allowing children under 14 to be held criminally responsible is failing to protect or act in the best interests and needs of children in section 17(2) of the Charter because of the criminogenic effects of the criminal justice system on very young children, diminishing their chances of rehabilitating, reintegrating and making a positive contribution to the broader society as adults.

The bill will protect and act in the best interests of children and families by allowing children under 14 who display problematic behaviours to be diverted from the criminal justice system and into age specific therapeutic programs, operating in a family and community environment. Such programs are more likely to address, and not aggravate, the underlying causes of their behaviours, and result in better long-term health and social outcomes both for the child, their family and the community.

The rights of children in the criminal process (section 23)

Section 23 of the Charter provides specific rights for children who are being detained or convicted of an offence, recognising that children are vulnerable due to their young age. Section 23(3) states that a child that has been convicted of an offence must be treated in a way that is appropriate for his or her age.

As children under 14 are unlikely to be able to fully comprehend the criminal nature of their behaviours, they are also unlikely to fully understand the nature of their engagement with law enforcement, the courts or any criminal sanction or punishment. A criminal justice response to their behaviour, therefore, is likely to re-traumatise these children.

The current minimum age of criminal responsibility means that children aged between 10 and 13 years old can be subject to these damaging criminal justice procedures, including detention, regardless of whether or not criminal charges against them are sustained. Indeed, data from the Sentencing Advisory Council shows that a very high proportion of children charged with an offence in Victoria are held on remand due to their inherent vulnerability, and that younger children under 14 years old are the most likely to be held on remand only to have their charges later dismissed or withdrawn.

I consider that the frequent pretrial exposure to justice procedures, including pre-trial detention, constitutes a significant practical weakness in the potential protections offered to children under 14 years by way of the common law presumption of doli incapax.

Therefore, I consider that the current low age of criminal responsibility does not sufficiently protect the rights of young children in the criminal process as provided under section 23 of the Charter.

Raising the minimum age of criminal responsibility to 14 years of age, will exclude some of the most vulnerable children, from damaging criminal justice procedures and detention. In my opinion, the bill promotes the rights of children to be dealt with in the criminal justice system in a way that is appropriate to their age and maturity, including diverting children away from the system due to their young age.

The right to protection from torture and cruel, inhuman or degrading treatment (section 10)

Section 10 of the Charter provides that Victorians have the right to be protected from torture and any treatment or punishment that is cruel, inhuman or degrading. These protections apply to public authorities in Victoria, such as state and local government departments and agencies, and people delivering services on behalf of the government.

This right is relevant to this bill, as such treatment may occur to children in the criminal justice system when people are held by police or in youth detention.

As already outlined, children, and in particular young children, do particularly badly as a result of spending time in prison and youth detention across a range of social indicators.

In 2019, the Victorian Ombudsman observed frequent practices that may amount to solitary confinement of children in Victorian prisons and youth detention centres including an alarming number of instances of prolonged solitary confinement, a practice prohibited by the international standards known as “the Mandela Rules”. In the context of Australia having recently ratified the United Nations Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) , the Ombudsman concluded that many of these practices were likely to be contrary to law and incompatible with Victoria’s human rights legislation.

The UN Human Rights Council Universal Periodic Review (UPR) has also been strongly critical of Australia’s low age of criminal responsibility. During Australia’s third UPR on 20 January 2021, approximately 31 UN member states recommended the age be raised, with 16 countries calling specifically for a minimum age of at least 14 years old.

I consider that Victoria’s current age of criminal responsibility, allowing children as young as 10 to be detained and experience forms of solitary confinement, falls below the current international human rights standards, as well as the right to protection from torture and cruel, inhuman or degrading treatment under the Victorian Charter. By raising the minimum age of criminal responsibility, and prohibiting the use of solitary confinement in relation to young people detained in a remand centre, youth residential centre or youth justice centre, and requiring minimum requirements for meaningful human contact during isolation, the bill will prevent the damaging treatment of children under 14 and young people in youth detention and prisons.

Cultural rights, including Aboriginal cultural rights (section 19)

Section 19 of the Charter provides that people with particular cultural, religious, racial or linguistic background must not be denied the right to enjoy or practise their culture. Section 19(2) recognises that Aboriginal people hold distinct cultural rights.

Aboriginal and Torres Strait Islander people are overrepresented in the criminal justice system, including as children. Victorian Aboriginal children aged between 10 and 17 are around 10 times more likely to be in detention than non-Aboriginal children. This overrepresentation is intergenerational, often impacting children from a very young age.

The overrepresentation of Aboriginal children in the criminal justice system has a strong negative impact on the ability of Aboriginal people to exercise cultural rights, as outlined in section 19(2) of the Charter.

The Australian Medical Association has observed the particular harms for Aboriginal and Torres Strait Islander children from early contact with the criminal justice system, while the Victorian Ombudsman has also noted that Aboriginal children are more likely to experience solitary confinement in Victorian prisons and youth detention centres.

The additional negative health effects of detention, specifically impacting Aboriginal children, are compounded by the fact that very young children aged 10 to 14 are already vulnerable in the youth detention system by way of their age.

The bill will effectively prevent very young Aboriginal children from having significant contact with culturally damaging criminal justice procedures and youth detention. It is intended that as a result of this bill, Aboriginal children aged under 14 whose behaviour would otherwise have led to engagement with the criminal justice system, be diverted into well-resourced Aboriginal Community Organisations to deliver culturally appropriate programs for children and families to address behavioural problems.

Therefore, I consider that raising the minimum age of criminal responsibility will promote the specific cultural rights in section 19(2) of the Charter by reducing the likelihood of Aboriginal and Torres Strait Islander children becoming entrenched in the justice system, while better enabling and empowering Aboriginal families, communities, and organisations to support their children grow into adults in culturally safe ways.

Humane treatment when deprived of liberty (section 22)

Section 22(1) of the Charter provides that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

In 2019 the Ombudsman found that incidences of isolation, seclusion and separation of children and young people in Victorian youth justice centres often equate to solitary confinement as defined by the Mandela Rules. The Ombudsman concluded that many of these practices were likely to be contrary to law and may be incompatible with Victoria’s human rights legislation including with section (22)(1) of the Charter.

I consider that by prohibiting the use of solitary confinement of young people and requiring the development of minimum requirements for meaningful human contact during periods of isolation this bill will uphold and promote the rights of young people under section 22(1).

Second reading

Samantha RATNAM (Northern Metropolitan) (09:54): I move:

That the bill be now read a second time.

Two years ago, I said I was proud and humbled to be introducing a bill to raise the age of criminal responsibility in the Victorian Parliament, to make Victoria the first state in the nation to raise the age.

Today my feelings are perhaps a step closer to frustration with our lack of progress in this place towards finally committing to this most obvious evidence-based reform, although I am also encouraged that outside of this place the case for reform has continued to grow – such that today there are no longer any credible arguments or reasons not to raise the age in Victoria to 14, even if in truth there never really were, beyond the weaknesses in our politics and in our governments.

When questioned by me on this issue over the last four years, the Victorian government has deflected by describing truths, rather than providing any reasons, as to why they have not acted.

They have said that raising the age will require a lot of work to identify and strengthen the gaps in the available child services across the state.

They have said that they will need to develop alternative pathways, such as restorative justice programs, to the criminal justice system for very young children.

Finally, they have said that they are focused on programs that target the causes of children under 14 years old engaging with the criminal justice system in the first place.

To all this I can only fully agree, and I commend the government where they have started this work.

But all this is no excuse to abandon human rights and the life outcomes for that small number of children under 14 that will inevitably end up in contact with the criminal justice system.

We cannot simply give up on these children, 10- to 13-year-olds, and just accept that their lives are destined to follow a path of greater trauma, mental illness, ongoing contact with the adult prison system and premature death, not due to their own complex needs but because of the way we as a society chose to respond.

Not when we now know there are much better options.

To plagiarise an expression recently made popular in Victorian politics, good government must do both.

We must do all we can to address the root causes of children engaging with the criminal justice system, such as socio-economic inequality and intergenerational cultural disadvantage.

But we also must accept the facts that any early contact with the criminal justice system, not just the exceptionally rare cases of detention under sentence, is criminogenic and a significant risk factor for not only lifelong social disadvantage but also serious offending and ending up in an adult prison.

Good government must also work to prevent this. And the evidence says this starts by raising the age of criminal responsibility to 14.

I am not going to repeat again, as I did in 2021, the many reasons why Victoria needs to raise the age.

As I said, I think we have now got to the stage where we have well and truly answered that question.

If necessary, anyone can now access the comprehensive submissions and analysis from the leading legal and medical stakeholders, as well as the recently released report of the Standing Council of Attorneys-General.

But before summarising the bill, I will outline briefly the context behind the second aspect of this bill, added since 2021, proposing to establish a prohibition on solitary confinement in youth detention centres.

In 2019 the Victorian Ombudsman inspected three different Victorian secure facilities: the adult Port Phillip Prison, the Malmsbury Youth Justice Precinct, as well as secure welfare services, a child protection facility.

What she found at all three facilities was practices amounting to the solitary confinement of children and young people – practices clearly in breach of both the Victorian charter of human rights and the UN convention against torture.

Solitary confinement is explicitly defined under international law, by rule 44 of the United Nations Standard Minimum Rules for the Treatment of Prisoners, known as the Mandela rules, as ‘the confinement of prisoners for 22 hours or more a day without meaningful human contact’.

Officially the Department of Justice and Community Safety and the Department of Families, Fairness and Housing do not define or use the term ‘solitary confinement’ in these facilities – they prefer less menacing expressions like ‘isolation’ for youth justice, ‘seclusion’ in secure welfare and ‘separation’ in prison.

However, euphemisms aside, the Ombudsman found that incidents of these practices, isolation, seclusion and separation, used against children in Victorian facilities, often equate to solitary confinement as defined by the Mandela rules.

As the Ombudsman outlined in her report, the solitary confinement of children and young people is particularly egregious because of the established medical evidence that people under 25 are still developing physically, mentally, neurologically and socially, meaning periods of solitary exacerbate the risk of causing serious and lifelong harm.

More disturbingly, at the Malmsbury Youth Justice Centre she found the disproportionate use of isolation and solitary confinement of Aboriginal young people, despite it being established since the royal commission into deaths in custody that Aboriginal prisoners subjected to solitary confinement suffer more extreme anxiety and trauma from such experiences.

The Ombudsman was unequivocal in her recommendation, and I quote:

Recognising the significant harm caused by the practice, that it is not unreasonable for detaining authorities to provide meaningful human contact even when a person is isolated, and that separation and isolation do not invariably amount to ‘solitary confinement’, establish a legislative prohibition on ‘solitary confinement’, being the physical isolation of individuals for ‘22 or more hours a day without meaningful human contact’.

Last year the government finally acknowledged this recommendation by introducing a bill to prohibit solitary confinement, but only in secure care facilities, not youth detention centres or prisons.

Then without explanation, the government refused to debate or try and pass its own bill, inexplicably leaving the most vulnerable children in the child protection system without a statutory protection against solitary confinement.

This is unacceptable and we call on the government to urgently reintroduce this bill.

At the same time this bill today will extend the government’s proposed prohibition, which we hope and expect to be reintroduced in their child protection bill, to also apply to youth justice and youth detention centres.

This is particularly important because it was the two correctional facilities, not secure care, where the Ombudsman found the worst instances of solitary confinement and breaches of human rights, concluding that, I quote:

… many of the practices in both our youth justice and prison systems are likely to be contrary to law, incompatible with Victoria’s human rights legislation, oppressive, discriminatory or simply, wrong.

I will now summarise the bill.

1. Raising the age of criminal responsibility

The age of criminal responsibility in Victoria is established by section 344 of the Children, Youth and Families Act 2005 (the act), which states:

It is conclusively presumed that a child under the age of 10 years cannot commit an offence.

The bill seeks to amend section 344 to state that:

It is conclusively presumed that a child under the age of 14 years cannot commit an offence.

This means that children aged 13 or younger can no longer be charged with a criminal offence or be subject to criminal law proceedings, while children aged 14 years and above may continue to be charged with criminal offences.

This amendment 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, this view has been thoroughly criticised by legal experts.

Because we know that in Victoria the majority of children that are charged aged 10 to 13 will be held in custody on remand, but also that these same children are almost certain to have their charges dismissed by a court or withdrawn by prosecutors.

The result is in Victoria we have a situation where a small number of children under 14 are being held in detention but none are serving time under sentence, nor are they ever likely to do so.

Effectively, this means children experience the worst aspects of the criminal justice system, including invasive criminal procedures and pre-trial detention, regardless of their guilt, and are then dumped back into the community in a worse place than when they entered.

Those few voices continuing to argue against raising the age on the basis that we need to ‘continue’ to make 10- to 13-year-olds face consequences are either ill informed or are deliberately misrepresenting the practical realities of the current system, which does not do this.

Unlike the current system, which charges, remands and releases young children without sentence, this bill allows the development of systems to be put in place for children to understand and comprehend the consequences of their behaviours, through restorative community-based agencies and programs.

Other intensive interventions should provide housing, treatment of mental health and addiction problems, specialist medical treatment, and education support. Aboriginal-operated organisations will be resourced to provide culturally appropriate programs for First Nations children.

The bill’s delayed commencement date, 1 July 2024, allows sufficient time for these alternative therapeutic and restorative community-based programs to be properly embedded as the alternative to the criminal justice system for all children aged under 14.

This will take time, so the bill has 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 committed before the commencement day can continue to be held responsible in criminal law proceedings.

However, it is expected that, in practice, a discretionary approach will be adopted when considering whether to commence criminal proceedings against children under 14 in the period prior to commencement.

2. Prohibiting solitary confinement in youth detention

The bill inserts two new sections in the act.

New section 487AA imposes a prohibition on use of solitary confinement across all youth justice facilities: remand centres, youth residential centres and youth justice centres.

‘Solitary confinement’ is defined in the bill as the physical isolation of a person without meaningful human contact for more than 22 hours within a 24-hour period, consistent with the Mandela rules.

New section 488AAA sets out that the secretary, DJCS, must prepare and publish the minimum requirements for what constitutes ‘meaningful human contact,’ and these must be complied with by any person employed or engaged in a youth justice facility. It is intended that these requirements should include the need for in-person contact.

Conclusion

This bill is about making sure we uphold the most basic human rights of children, to be treated in a way that appropriately recognises and responds to their age.

The bill also proposes, somewhat incredulously in the year 2023, that we act to ensure that we no longer treat children that are held in detention in a way considered as torture under international law.

But the bill is not simply seeking to tick a box to uphold the most basic human rights for our international reputation, because the primary aim of the bill is to reverse the practical, demonstrated and ongoing failures of the criminal justice and youth detention systems when responding to the complex and dysregulated behaviours of the most disadvantaged children in the state.

Failures that are why these children are far more likely to show up at emergency departments shortly after their release with incidents of self-harm.

That is why their life expectancy after experiencing youth detention is a fraction of the national average due to early death.

And that is why, rather than reducing criminal offending, they result in a reoffending rate from youth detention somewhere north of 80 per cent and a normative pattern of escalation leading to adult incarceration.

So yes, this about us meeting minimum standards of humanity, but it is also about the practicalities of responding to a Dickensian-era system that is failing children, and failing broader society, and finally responding with a more sophisticated and contemporised evidence-based model.

As I said two years ago, we can continue to put our heads in the sand, but we cannot deny the evidence, the crime data, the economics forever.

We have wasted two years since I last called for a commitment to act on this issue.

Now surely it is the time to make this commitment that is necessary so we can begin the real work of building a better system.

I commend this bill to the house.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (10:08): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.