GOVERNMENT BILL: Youths Sentenced as Adults
November 29th, 2017
On the 29th of November, Mark spoke against the Statutes Amendment (Youths Sentenced as Adults) Bill 2017.
The Hon. M.C. PARNELL: This is a bad bill and the Greens will be opposing it.
The Hon. M.C. PARNELL: I am being goaded to end my contribution there, but for reasons that will become apparent I will have a lot more to say about this bill. Until very recently, it was clear that this bill did not enjoy majority support in this chamber, but the looming election seems to have spooked the Liberal Party. If you look at what the Liberal Party has said up until now, it was generally principled and it was respectful of the overwhelming weight of the submissions that we have received, every one of which has urged us to oppose this bill.
The shadow attorney-general in another place said she opposed the bill, but she then suffered under a hail of blows from the Attorney-General, in the media, as the regular pre-election 'tough on crime' debate came to the fore. It is unedifying, it is disingenuous and it is opportunistic, but apparently it works. Normally we find that the shadow attorney-general does not cave in lightly to these attacks, but clearly the looming election got the better of the Liberal Party, and the Liberal Party have backflipped. They are not my words. They are the words that we read in The Advertiser this morning on page 11 in an article by Adam Langenberg, which starts with the paragraph:
Serious juvenile offenders will be sentenced as adults, after the Liberals backflipped on their objection to the move.
The Opposition’s support means legislation will be passed before the March election.
So, from a position of clear opposition to the bill, we now find that the Liberals have filed amendments, which do not actually fix the principal wrongs that are committed by this bill but presumably do enough to get the Attorney-General off their backs. The Attorney has them running scared, and the Liberals have capitulated. In fact, they are not just running scared, they are running stark naked because even the fig leaf of respectability that they once had on this bill has been lost in the race to the bottom of the law and order debate.
As I said before, every single submission that I have received has urged the Greens to oppose this bill. There is not a single email in my inbox, not a single submission was received urging the Greens to support the bill. These submissions opposing the bill were not solicited by the Attorney-General because he did not have the courtesy to consult with key stakeholders. He did not bother consulting with them; nevertheless, a range of stakeholders have gone to a lot of trouble to tell the Legislative Council that we should reject this ill-conceived legislation.
If the Liberal Party had maintained its original principled position that held apparently until this week, then I would not need to put on the record the entirety of the case opposing this legislation. Now that the Liberals have capitulated, I find that I do need to, because they will not, because every bit of material they have before them from stakeholders tells them to oppose the bill, so they are not going to put the material on the record, so I need to. The Greens, in relation to this bill, are prepared to step up, and we will play the role that normally a proper opposition should play in testing legislation; that is, exploring the detail, looking at the unintended consequences and, ultimately, voting this bill down as it deserves.
I am not going to read onto the record every word that has been written by every stakeholder on this bill because that would take, on my estimate, two or three hours, but I do need to put a deal of this material on the agenda. I need to explain why it is that every stakeholder opposes this bill.
I might start with the contribution of the Council for the Care of Children. I think that is an important stakeholder to start with because this body comprises a number of very senior government representatives. There are heads of government departments who are on the Council for the Care of Children. People might say, 'Just because they are on that council doesn't mean that they agree with every word that the council says,' but I can tell you that not one of them has written to us saying that they demur or object to the submission that the Council for the Care of Children has put to us.
The submission I refer to is dated 1 November 2017, and in the very first paragraph it states, 'The council urges you not to support the bill'—not to support the bill. The submission goes through a great deal of detail, most of which I think could be summarised as: why do we not continue to recognise the fact that children are different, that their brains develop differently and that their capacity to make good judgements is different to adults? That is why, in fact, we have special laws for children. I am paraphrasing a very lengthy submission, but ultimately that is what they are saying.
They also refer to the fact that there are systemic and root causes of offending that this bill does absolutely nothing to address. The submission talks about the phenomena that we all know of adolescent risk-taking. Some of it will be criminal in nature and some of it will be kids just being stupid. We know that about children, which is why we have special laws to deal with children when they come in to the criminal justice system.
The submission talks about rehabilitation prospects, none of which are advanced by the provisions in the bill. The submission refers to the doctrine or the concept of proportionality. They refer to a number of South Australian Supreme Court cases, and they offer the observation that the existing section 3 of the Young Offenders Act provides a sensible balance between the protection of the community and the needs of a child or young person who has offended.
The proposed amendment in the bill before us would require that existing fine balance to be destroyed in contravention of well-founded national and international legal principles and human rights instruments. I will come back later in my contribution to talk about those international obligations because they go to the heart of what is wrong with this legislation. The Council for the Care of Children posed the question:
Will the amendment achieve the stated objective of making the community safer?
That is the fundamental question; it is the whole reason the government has introduced this bill. This is the council's response to that question:
When a child or young person offends is sentenced to detention, he or she will eventually have to be released back into society. Ultimately the best protection for the community would be afforded by the rehabilitation of a child or young person while in detention and, at the same time, targeting the root causes of offending to prevent (re)offending. Rehabilitation would more likely occur as a result of proactive, intensive and sustained case management in a youth training centre and/or a step-up/step-down facility…
Which they note does not currently exist in South Australia. The council also refers, at a more practical level, if you like, to the incredibly high cost of incarceration, the fact that locking a young person up until, for example, their mid-30s would, in effect, condemn them to a life of criminality. It is going to cost us a fortune as a community.
This submission was under the hand of Simon Schrapel, who is the chair of the Council for the Care of Children. It is worth pointing out, as I said earlier, who is on this council. We have the head of the Department for Education and Child Development; we have the head of the Department for Communities and Social Inclusion; we have the head of Aboriginal affairs and reconciliation; we also have the head of the Department for Health. My understanding is that these CEOs send a representative to represent them at these meetings, but I make the point again: not once have any of these people written to us saying that Simon Schrapel has got it wrong and that the views of the Council for the Care of Children do not reflect their views. So, their silence, I think, is damning. Here we have key leaders in key government agencies whose organisation has written us a letter saying, 'Oppose the bill.' That is the first of the submissions.
The second submission I would like to refer to is that of the Youth Affairs Council of South Australia. I contacted them some time ago and asked them what they thought of this bill, to which their response was, 'What bill?' Clearly, the government had not done anything like the consultation job that it should have done. Again, there is a theme that will develop through these submissions, but the Youth Affairs Council basically has pointed out the obvious:
…this Bill fails to acknowledge the development stages of children and young people and the social and systemic drivers of offending while simultaneously stripping the vital rehabilitative object of the Young Offenders Act 1993.
The submission is short but comprehensive. It refers to article No. 40 of the Convention on the Rights of the Child, which Australia has signed and which I will refer to at some length later on. The submission, in conclusion, basically relies on that international convention as a very good reason why laws such as that proposed in this bill are bad laws and should be opposed. I thank Anne Bainbridge of the Youth Affairs Council of South Australia for getting a submission to me and to other members of parliament. I am disappointed that the YACSA submission has been completely disregarded by the government.
The next submission I wish to refer to is that of the Law Society of South Australia. The Law Society, back on 10 August, put in a very detailed submission, the bottom line of which is that this parliament should oppose the legislation. The Law Society points out, as do all of the submissions, that the bill does not take into account a child's cognitive development in seeking to treat children the same as adults: it ignores that fundamental principle.
The submission talks about how the bill contravenes well-established international legal principles. They refer to the Convention on the Rights of the Child, but they refer to other international instruments as well: the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, the so-called Beijing rules, and they explain in their submission how this bill offends those international conventions and treaties that Australia has signed. The society in their submission say that they consider this bill to be:
…another piecemeal legislative removal of the principles of 'best interests' of the child. It was removed from the Children's Protection Act 1993 by the introduction of the Child and Young People (Safety) Act 2017, and will now be overridden in the Young Offenders Act.
The submission also goes on to say that the bill is unlikely to achieve its desired effect. The society says that it is aware of research that shows that the threat of adult criminal sanctions has no effect on the levels of serious juvenile crime, and that juveniles who receive harsher penalties when tried as adults tend to reoffend sooner after their release and more often than those dealt with by the juvenile system. Similarly, they refer to another study which found that juveniles given more severe penalties were more likely to reoffend than those given less severe penalties, even after controlling for a range of other factors.
So, if the object of this legislation is to keep or to make the community safer, then all of the evidence put forward to us by experts tells us that it is not going to happen, it is not going to work, it is the wrong approach if what you are trying to do is make the community safer. The Law Society says:
Locking up young people for longer is more likely to impede the prospect of rehabilitation upon release from detention. Thus the proposed legislative amendment runs contrary to the aim of decreasing recidivism and increasing community protection.
The society then on goes on for several pages to talk about the need for rehabilitation for young offenders, again a common theme in all of the submissions that we as members of parliament have received.
I will not read all that material, but I will go to some of the concluding remarks the Law Society made. They actually revisited the Cappo years, Monsignor David Cappo, and referred to reports that he had done, which again run contrary to this legislation. By way of conclusion, the Law Society said:
By way of a summary the main problem with the Bill is not that it wishes to have, as a relevant consideration, the safety of the community but rather that it seeks to mandate the safety of the community as outweighing all other considerations where, for the reasons set out in this submission there are a number of other very important considerations in the case of youths that need to be taken into account. In order to achieve what is in the best interests of the child and the community.
For the reasons noted above, the Society does not support the Bill in its current form.
So, there you have it: a now third stakeholder group singing from the same hymn sheet that this is a bad bill and urging the parliament not to support it.
The next submission I will refer to is that of the Aboriginal Legal Rights Movement. As members know, because we have discussed it in this chamber many, many times, the Aboriginal community in this state is vastly and grossly over-represented in the criminal justice system, whether that be in relation to youth or in relation to adult incarceration.
The Aboriginal Legal Rights Movement quite rightly points out that it is the Aboriginal community that will suffer the most if this legislation goes through. The ALRM, again right at the front of their submission, points out that Australia is a signatory to the United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, as well as the UN Standard Minimum Rules for the Administration of Juvenile Justice. They have actually identified three international treaties that are breached by this legislation. They point out that the United Nations has consistently criticised Australia for failing to bring Australia's treatment of children in the criminal justice system in line with international standards. The ALRM draws particular attention to United Nations' criticism of the state of Queensland, because they treat 17 year olds as adults.
There is a whole range of quotes that the ALRM provides to us from various United Nations reports. They also refer to the Royal Commission into Aboriginal Deaths in Custody, because whilst that report may have been many years ago, the recommendations have still not all been implemented and they still have things to say to us today.
The ALRM knows very clearly who is going to suffer the most from this legislation, and it will be members of South Australia's Aboriginal community. I will read the concluding sentences of the ALRM submission. It states:
We reiterate our concerns that Aboriginal youth in South Australia are grossly overrepresented in youth detention and incarceration and we greatly fear that this provision if enacted will increase the period of incarceration which individual Aboriginal youths will suffer.
What is clear is that Aboriginal youths require more and better projects programs and services to assist in their rehabilitation and in particular their cultural rehabilitation into a law-abiding life. ALRM calls upon the government to make that a stronger priority.
They urge us not to proceed with this bill. The submission is signed by Cheryl Axleby, CEO, Aboriginal Legal Rights Movement.
The final stakeholder submission that I will refer to is that from the Guardian for Children and Young People. We were presented with two submissions from the guardian. I could read out the detailed 36-page submission, complete with footnotes, that was provided to all members some time ago—the most comprehensive submission that you are going to see on why this is a bad law and why we need to treat youth offending differently to adult offending.
Fortunately, the guardian has provided members, just in recent days, with a more concise two-page submission, which still covers the main territory but brings us up to date. The reason I say we need to be brought up to date is that unless members have been asleep, they would have noticed that the royal commission in the Northern Territory has handed down its findings in relation to juvenile justice in that state. All of us have seen on television footage of the Don Dale Youth Detention Centre, and all of us have been appalled at the conduct that went on in that facility. I will put on the record not the 36 pages from the guardian but the two pages. The guardian says:
The new Northern Territory Royal Commission report comes at an important time in this debate. It reminds us of essential justice considerations. We cannot ignore the relevance of the report and its recommendations, many of which are applicable to youth justice systems throughout Australia.
The Commissioners found that the Northern Territory 'detention system failed to comply with basic binding human rights standards in the treatment of children and young people'. It also found that their child protection system similarly 'failed to provide the support needed to some children in care to assist them to avoid pathways likely to lead into the youth justice system'. How would South Australia's systems stack up? These are salutary messages for those about to vote on this particular legislation next week.
I believe the Royal Commissioners have crucial insights that are relevant for our state, especially observations such as—
'Perpetuating a failed system that hardens young people, does not reduce reoffending and fails to rehabilitate young lives and set them on a new course, is a step backwards.'
And another quote from the royal commission:
'The fundamental principle underpinning youth justice and detention is that children and young people should not be managed in the same way as adults…children and young people often come into conflict with the law because they lack maturity, make poor and risky decisions, and are highly susceptible to negative influences, particularly peer pressure.'
The Commission found that 'many of the children who come into contact with the youth justice and child protection systems do so as a result of the underlying drivers of socioeconomic inequality including racism, remoteness, poverty, housing issues, poor physical and mental health and disabilities. Many of these drivers also apply to South Australia.
I am also very concerned about the safety of the community. Although the primary rationale for this legislation is 'community safety', the evidence is clear that it will not work to make our community safer. More detention and longer jail terms are shown to lead to more criminalisation of individuals, not less.
This bill may keep some young offenders 'off the streets' for longer periods but they will ultimately return to live among us. The Attorney-General has proposed that considerations of 'care, guidance and correction' and rehabilitation be abandoned for some young offenders. And yet it is the careful work that can be done with young offenders, directed to 'care, guidance and correction' (which many of them will never have experienced in the course of their traumatic and chaotic lives) which is most likely to make a difference to their futures. It stands to reason – and the evidence bears this out – that locking up young offenders for protracted periods of time and seeking only to punish them, will ultimately result in more hardened and proficient offenders.
If the measures in this bill are designed to deliver deterrence, then, again, the evidence is clear. We know that young people don't think like adults. (That's exactly the reason given for not allowing them to vote or drink until they are 18.) Young people, with their immature brains, are more likely to be impulsive and reckless, and less able to think realistically about consequences. And the trauma that many young offenders have experienced in their short lives – through no fault of their own – further damages the developing brain and makes it even harder to think logically, reasonably and thoughtfully. Acknowledging trauma and responding to it on the basis of what actually works, rather than just punishing people for longer periods of time, is more likely to result in a change of behaviour, which will lead to less offending and a safer community.
South Australia's Parliament can be justifiably proud of many recent legislative initiatives in the youth justice sphere, such as the Youth Justice Administration Act 2016, which recognises the evidence about what works. The current bill is directly inconsistent with that Act and clearly breaches national and international standards about how children and young people should be treated. It will be extremely unfortunate if the constructive changes embodied in recent legislation are diminished by the passage of the Statutes Amendment (Youths Sentenced as Adults) Bill 2017.
This bill was introduced in a context of several high-profile matters involving very serious offences committed by children or young people, with tragic consequences. These events deeply affected the families and friends of the victims of those offences and the broader community. At times of distress and heightened emotion, there is an understandable human need to react decisively. There is also a very human impulse to seek punishment and even retribution. It is at just such times that responsible and considered responses are called for. Responses that will be constructive, not merely reactive.
As legislators, I urge you to withstand the temptation to vote for what may appear 'popular' and instead take up the challenge to make law that will actually enhance community safety, based on evidence as to what is most likely to have beneficial consequences for the community.
The letter is signed by Penny Wright, Guardian for Children and Young People and Training Centre Visitor. So, there are some submissions. They are all saying similar things in slightly different ways. One point I said I would come back to, and I will do this now, is that they all made reference to the international Convention on the Rights of the Child. This is a United Nations convention that Australia has signed, and it includes article 40:
1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
That is what we signed up for as a nation, and this bill completely disregards our most fundamental obligations under this convention. I need to explore exactly why that is the case so when members vote on this bill, they know exactly what they are doing.
For students of international law who are paying attention to this issue, the first reaction most of them would have if they understand anything about international law is, 'It is an international convention, it is not a South Australian law, so how does that article apply?' People might point out that the general legal principle is that international treaties do not become part of domestic law until they are specifically incorporated through legislation. That is how it has worked for many years.
For people who only want a bare pass for their international law studies, that is as far as they will get. They will leave it at that. But if you want to get a credit for international law, you will need to go a bit further. If you want to get a credit, you have to also be aware of the High Court's case in Teoh from the 1990s. In that case, the High Court of Australia declared that all Australian citizens had a legitimate expectation that our administrative decision-makers, including departments, including ministers, would have regard to international treaties when they made decisions.
That was a very sensible decision because when you think about it, the alternative is that our governments over many years are a complete bunch of hypocrites, who are happy to sign international treaties but have no intention whatsoever of applying them domestically. The High Court was not prepared to wear that hypocrisy. They said, 'Of course citizens have a legitimate expectation that treaties mean something, that we sign them with a view to them meaning something.' So, well done to the High Court, and if you refer to that in your international law essay, you will get a credit.
If you are not happy with a pass or a credit, if you want to get a distinction, you need to go one step further. You need to note that not only do international treaties not normally apply, not only did the High Court say, 'They really should,' but what we have in South Australia is the unique situation where we have a specific piece of legislation that is designed to undermine the High Court's decision in Teoh; that is, the Administrative Decisions (Effect of International Instruments) Act 1995. The operative provision is very short and I will read it. It is section 3:
(1) An international instrument (even though binding in international law on Australia) affects administrative decisions and procedures under the law of the State only to the extent the instrument has the force of domestic law under an Act of the Parliament of the Commonwealth or the State.
(2) It follows that an international instrument that does not have the force of domestic law under an Act of the Parliament of the Commonwealth or the State cannot give rise to any legitimate expectation that—
(a) administrative decisions will conform with the terms of the instrument; or
(b) an opportunity will be given to present a case against a proposed administrative decision that is contrary to the terms of the instrument.
(3) However, this Act does not prevent a decision-maker from having regard to an international instrument if the instrument is relevant to the decision.
That might sound complicated, but the student looking for a distinction in international law will understand it. I will paraphrase it for the benefit of honourable members. What it says is: nobody can hold the government to account for not complying with international treaties. It is up to the individual decision-maker to decide for themselves whether or not to have regard to a treaty or a convention when making decisions. The treaty or convention is in effect an optional extra that we can abide by if it suits us and disregard if it is convenient to do so.
Not everyone has been here as long as I have. The Hon. Mr Hanson will not recall this as he was not here, but other members will recall that I have, twice in the last 12 years, sought to repeal this act—twice. We are the only state that has this act that thumbs its nose at the High Court, that thumbs its nose at international treaties, but whenever I have introduced it into parliament, both the old parties have rejected it. Why? Because they are hypocrites. They love the warm inner glow that comes from signing international treaties, but they are horrified at the idea that we might actually have to do anything in return.
My first attempt to repeal this law was in 2007 and the trigger was the parlous state of the River Murray and the Lower Lakes. The Lower Lakes are listed internationally as wetlands of international significance under the Ramsar Convention, which Australia has signed and which obliges us to look after them. So, building a weir at Wellington would have been in direct contravention of our international obligations to look after those wetlands, but the South Australian Administrative Decisions (Effect of International Instruments) Act let our state off the hook.
My second attempt to repeal this law was in 2009. This is of direct relevance to the bill because, back on 17 June 2009, I referred the council to the 2005-06 annual report of the then guardian for children and young people, Pam Simmons. She referred to the Magill Youth Training Centre and said it was:
…a cheerless institution which inhibits proper care and behaviour change. The facility falls well below national standards for both youth and adult detention facilities,—
and this is the killer—
contravenes UN Rules for the Protection of Juveniles Deprived of their Liberty, and is potentially in violation of Article 40 of the UN Convention on the Rights of the Child.
This reference to a potential breach on the Convention on the Rights of the Child cannot be news to members. We have been debating it in this parliament over the last eight or so years, and Pam Simmons, as the then guardian, quoted article 40 (I will not read it again). Really, that proves there is very little new under the sun.
What I said eight years ago in response to that was that in parliament what we have to remember, regarding these young people, is that they have, in the main, long lives ahead of them. Those lives could be constructive, worthwhile and happy or they could be antisocial, deprived and criminal. The philosophy of pack 'em, rack 'em and stack 'em has no role in juvenile detention unless we are determined to make adult offenders out of child offenders. What does this bill do? It makes adult offenders out of child offenders. There is nothing new under the sun, the parliament has heard this before.
Going back to my analogy of the student who wants to get a pass, wants to get a credit, wants to get a distinction, there is one other class of student, and that is the dux. This is a student who is going to get the high distinction, who is going to top their class. To get that top mark they need to do one more thing. This hypothetical student is a devoted reader of Hansard; she knows what is going on because she reads the Legislative Council Notice Paper. This high level student is alert to hypocrisy.
In researching their essay on this topic the high distinction student will have come across the Prevention and Early Intervention for the Development and Wellbeing of Children and Young People Bill 2017. Unfortunately, that is not a bill we are going to have time to debate in this session of parliament. It is on our Notice Paper but it looks as if we are not having the optional sitting week and we are not going to have time to debate it.
However, it is instructive, and it is instructive as much for what is in it as for the reasons we are not going to debate it. Under Part 2—Purposes of this Act, clause 7—Effect of Part, the part sets out 'the Parliament of South Australia's commitment to the United Nations Convention on the Rights of the Child'. It says it in black and white: the parliament is committed to this convention. In clause 8 it goes on to provide:
The Parliament of South Australia recognises the United Nations Convention on the Rights of the Child and prescribed service providers will seek to give effect to the rights set out from time to time in the convention.
The prescribed service providers include the Department for Communities and Social Inclusion. So, the department responsible for these young offenders in this bill, if this bill were to pass, would be legally obliged to have regard to and to give effect to the United Nations Convention on the Rights of the Child.
Yet, we have not got to this bill yet; it is on the Notice Paper but we are not going to get to it. I am not normally a suspicious person, but why is the government not going to progress that bill? I will tell the chamber why: it is because the government has realised that it is a complete embarrassment to them. It is an embarrassment because the parliament is about to throw that international treaty out of the window and it would make no sense for the parliament, in the next breath, to debate a bill that gives legal effect to that very same treaty.
What a bunch of hypocrites we have here. The government would rather pass bills that trash the Convention on the Rights of the Child than get around to passing a bill that says, 'We support the Convention on the Rights of the Child and we give effect to its provisions.' This is hypocrisy of the very worst kind.
The Greens will be strenuously opposing this bill. We will be forensically pulling it apart in committee. It will take time and I would urge the government to just let this bill go. If they happen to be successful after the next election, they can look at it again and bring it back. If the alternative government had some real ticker, they would not have caved in as they have to this pathetic law and order debate—who can be the toughest.
The shadow attorney-general would have resisted the cheap shots directed at her by the Attorney-General. They would have read all the submissions which unanimously told us that this was bad law and that we should vote against it. I would urge the Liberals to reconsider as well. I really hope that this bill goes no further than the second reading today. The Greens will be opposing it at the second reading and we will be dividing on it and I expect we will be dividing through the committee stage as well.
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