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SA government criticised for ignoring advisory commission's recommendations on raising age of criminal responsibility

Dechlan Brennan -

The South Australian government's consideration in raising the minimum age of criminal responsibility to 12 has drawn criticism from Indigenous and Human Rights groups for being out of step with community safety, medical and expert advice, as well as ignoring the advice of its own First Nations advisory commission.

In 2022 the state's Labor government announced an Advisory Commission into Incarceration Rates of Aboriginal People. Last year the Commission delivered its findings, explicitly recommending the SA government raise the minimum age of criminal responsibility to 14.

"The effects of the removal of Aboriginal children from communities to detention are reminiscent of those felt by Aboriginal people who were subjected to the forced removals that taint our colonial history," the report said.

"Accordingly, we are of the view that the minimum age of criminal responsibility must be increased to 14 years in SA."

However, the government has released a discussion paper outlining their intention to gather community submissions for a new proposal to only raise the age to 12 - with carve-outs for violent offences.

"The alternative diversion model would include a three-tier response that increases in intensity depending on the child's behaviour and their needs. It would be restorative, culturally led, trauma-informed and include professional developed and led diversionary programs," the discussion paper said.

The "consideration" in raising the age from the SA government and Attorney-General Kyam Maher falls short of the minimum standards for children's rights set by the United Nations, which calls for the minimum age to be set at 14.

On Wednesday, Change the Record's co-chair, Cheryl Axleby, said the Attorney-General's proposal was a "missed opportunity" to recommend crucial changes which "inhumanely lock up small children and deny them the right to a childhood".

"In South Australia and across Australia, First Nations children and children with disabilities are massively over incarcerated by a harsh, discriminatory and punitive system," the Narungga woman said.

"Children will continue to experience significant harm and trauma while the South Australian government makes no tangible commitments to raise the age to 14 and continues to criminalise 10- and 11-year-olds for certain behaviours."

The Justice Reform Initiative (JRI) - an alliance designed to end Australia's reliance on incarceration - said whilst they noted the SA government's willingness to engage with the community, the discussion paper didn't engage with the "overwhelming medical evidence and community experience".

"Imprisonment, particularly at a young age, increases a child's risk of becoming trapped in a cycle of criminal justice involvement," JRI's South Australian campaign coordinator Hannah March said.

"Too many children are 'managed' in prisons instead of receiving the support and care they need in the community.

"This makes the community less, not more, safe."

In September 2023, the Royal Commission into Violence, Abuse, Neglect, & Exploitation of People with Disability recommended that the age be raised to 14, arguing it's "the most effective way of preventing very young children from 'a potential trajectory within the youth justice system".

Ms Axleby said the only thing stopping this happening immediately was a lack of collective political will.

"First Nations communities, human rights advocates and legal and health experts have been advocating for this reform for so long," she said.

"We have evidence-based solutions to give children the right support, at the right time and place.

"As we have seen in Tasmania, it is possible to implement the full recommendations of the United Nations to raise the age to 14 with no exceptions and no-carve outs."

Tasmania announced in December they would be establishing a therapeutic-based model, raising the age to 14 by 2029. Victoria has said they will raise the age to 12 by 2025, and 14 by 2027.

Last year, the Royal Australasian College of Physicians (RACP) called on Attorneys-General's across Australia to agree on raising the minimum age.

"All governments need to listen to health experts who have been sounding the alarm: 10 to 12 years as the threshold for criminal responsibility is too low," RACP president and paediatrician, Dr Jacqueline Small said at the time.

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