On Monday 15 November 2021 I addressed the Community Support & Services Committee for a public briefing on my Criminal Law (Raising the Age
of Responsibility) Amendment Bill 2021. 

You can read my opening statement below, or the full transcript in the official Queensland Parliament Record of Proceedings (Hansard).

Thanks very much, Chair, and thanks to the whole committee for the opportunity to brief you on the bill. I also want to acknowledge that we are on the unceded stolen land of the Jagera and Turrbal people. I pay my respects to elders past and present and acknowledge that the fight for justice and First Nations sovereignty is ongoing.

In discussing issues like those addressed in this bill, we should explicitly recognise that the institutions we work within and alongside—the parliament, the courts and the executive—are the same institutions responsible for the dispossession and genocide inflicted on First Nations people. The ongoing overrepresentation of First Nations people in our prisons, in the so-called justice system and in our child protection organisations demonstrates that these are not just legacy issues. We must be honest in acknowledging that dispossession and state violence against Aboriginal and Torres
Strait Islander peoples continues today.

The central proposition of this bill is incredibly simple: children under 14 years of age should not be incarcerated or otherwise punished under the criminal legal system. As I have detailed in the explanatory notes and in my introductory speech, this proposition is consistent with current medical understanding of child development and contemporary human rights standards. Allowing kids as young as 10 years old to be incarcerated on the other hand flies in the face of our human rights obligations under the UN Convention on the Rights of the Child and increases the likelihood of more
serious reoffending, ultimately leaving our communities less safe.

The bill amends the Criminal Code to raise the minimum age at which a person is criminally responsible for any act or omission from 10 to 14 years old. It also includes important transitional provisions for any child who has committed an offence before they were 14. For these children it sets out the following requirements: if they are being held in detention for the offence, they are to be released as soon as possible and no later than one month from commencement; if they are being held in the watch house for the offence, they are to be released as soon as possible and within no more than three days; the offence is to be expunged from their criminal history; any identifying particulars taken in relation to the offence, such as fingerprints or DNA samples, are to be destroyed; no proceedings or orders can be commenced or continued against them for that offence; and, additionally, when transitioning a child from detention or a watch house, efforts must be made to ensure they have access to things like accommodation, parental or guardianship support, and health and other support services.

I would expect it is uncontentious that kids do not belong in prisons. It is worth considering in concrete terms what is going on for the average 10-year-old kid. I mentioned when introducing the bill that my eldest daughter turned 10 just a couple of months ago. She still has a couple of years left in primary school, she is still losing her baby teeth, and I think I mentioned before that gymnastics, dance classes and getting ice-cream after dinner are just about the most important things in her world.

Currently in Queensland there are about 17 children aged 10 to 13 years old in detention on any given day, which is about nine per cent of the detention centre population. There are also on average about four children under 14 held in a police watch house on any given day. By raising the age we would end up diverting around 130 children between 10 and 13 years old from prison and about 316 from the watch house each year in Queensland. The fact that this is a relatively small number of children at any point in time means it is entirely feasible to move these kids out of prisons and watch houses and into safe housing.

I do want to take this opportunity to note an error in the explanatory notes to the bill at the bottom of page 4 where it says the number of children under 14 who are held in a watch house each day on average is 17. The correct number is four. As I mentioned just a moment ago and in the paragraph above that, 17 is the average number of 10- to 13-year-olds in youth detention.

The UN committee that oversees the Convention on the Rights of the Child has explicitly recommended that signatory states, including Australia, adopt a minimum age of no less than 14. The bill removes existing unreasonable and unjustified limitations on the human rights of 10- to 13-year-old children under our current law and would enhance their rights in respect of a number of human rights enshrined under our Queensland Human Rights Act, specifically the protection of families and children under section 26, the cultural rights of Aboriginal and Torres Strait Islander people under section 28, children’s rights in criminal proceedings under section 32(3) and children in the criminal process under section 33.

The basis of the UN’s position on this is not just the growing human rights discourse and jurisprudence; it is actually the medical evidence. For children under 14, their brain, particularly their prefrontal cortex, which helps us plan, foresee consequences and control impulses, is not yet developed, but the amygdala, which is responsible for reward-seeking behaviours, is developed. This is why criminalising children like adults just does not work. These kids are not making and cannot make decisions in the same way that adults do.

The Royal Australasian College of Physicians supports raising the age to 14 and I would like to quote a recent statement from them on this issue. They say— A range of problematic behaviours in 10 to 13 year old age children that are currently criminal under existing Australian law are better understood as behaviours within the expected range in the typical neurodevelopment of 10 to 13 year olds (typically actions that reflect poor impulse control, poorly developed capacity to plan and foresee consequences such as minor shoplifting or accepting transport in a stolen vehicle)

This bill obviously is not just about First Nations children, but the statistics make clear that these are the kids suffering most as a result of the current law. Queensland has the greatest proportion of First Nations children under 14 held in detention of any Australian state. The most recent data we have in relation to kids in watch houses, from November 2020 to August 2021, is pretty damning. In this period there were eight 10-year-old children held in a watch house. Only one of these kids did not identify as Indigenous. Of the 558 10- to 13-year-old children held in watch houses, 84 per cent were First Nations kids, 46 10- to 13-year-old children were held for more than two nights and only one of these 46 kids was not Indigenous.

Although figures are not available for children aged 12 and 13 years old, First Nations children account for around 60 per cent of all children aged 10 and 11 in contact with the Queensland Police Service and the overrepresentation increases with each escalation of statutory intervention. This bill acknowledges that the current system is not working. The intention of the bill, rather than ignoring problematic behaviour by children under 14, is to shift the response from a criminal to a rehabilitative one which addresses the underlying needs of the child and their family. This reflects the disproportionate disadvantage experienced by young people who display the kinds of problematic behaviour that may cause them to come to the attention of police.

Research suggests that diverting more children away from the criminal legal system and providing support to address their individual needs will mean these children are less likely to continue to engage in criminal behaviours throughout their lifetime. As Amnesty International pointed out in its report on raising the age, children arrested before the age of 14 are three times more likely to reoffend as adults than children first arrested after they are 14 years old. While the current age of criminal responsibility may temporarily limit some immediate risks to the community while some children are in detention, diversion, particularly for children under 14, is likely to be far more effective in improving community safety. Raising the age of responsibility is one crucial part of a better approach to justice.

A key problem with Queensland’s current system, as was identified in the Atkinson report, is that the path to services is often through the criminal legal system. By raising the age of criminal responsibility, the mechanism for referral to support services is decoupled from offending or involvement with the criminal legal system and referrals should be offered at the earliest possible point of identifying concern. The government should take a justice reinvestment approach, moving investment from prisons into community programs and therapeutic services. Not only are these programs proven to be more effective than criminalisation; but they are cheaper. It costs more than $1,600 to keep one young person in detention for one day and that does not even include the government’s enormous capital spend building and expanding youth prisons—more than $30 million in this financial year alone.

I have gone into some detail in the explanatory notes about what an alternative model for children under 14 would look like once removed from the criminal system, but a crucial first step for the government would be commissioning an independent review of service availability gaps in Queensland like the ACT has just done. I have provided the committee with copies of that report and I seek leave to table that at whatever point the committee sees fit.

CHAIR: Is leave granted? There being no objection, leave is granted.

Mr Berkman: The development of an alternative model should include three to four key levels: firstly, prevention and early intervention in the first instance; secondly, therapeutic and community based responses to low-level problematic behaviour supported by a multidisciplinary expert panel working with families; and, thirdly, any kids engaged in serious or violent behaviour should be provided intensive case management with wraparound services.

The medical evidence, human rights advice and statistics are crystal clear: we must act now to ensure children under 14 years of age are not incarcerated or otherwise punished under the criminal legal system. Thank you very much. I look forward to your questions.