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Legislative Assembly for the ACT: 2000 Week 3 Hansard (8 March) . . Page.. 666 ..

MR STANHOPE (continuing):

keep people out of the criminal justice system for as long as possible, to give them such care, correction, control or guidance as would best lead to maturity as responsible and useful members of the community.

Article 40 of the UN Convention on the Rights of the Child calls upon signatories to that convention to do certain things in relation to children appearing before the courts - in particular, to have cases determined in a fair hearing according to law, taking into account their age or situation, their parents or legal guardians; to establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law; and wherever appropriate and desirable to have measures for dealing with such children without resorting to judicial proceedings, provided that human rights and legal safeguards are fully respected.

It is relevant to mention that convention because, as members would be aware, in Australia's first report under article 44(1)(a) of that convention, which was issued in December 1995, the Australian Government reported to the United Nations that it was in the process of developing a model criminal code which was for all Australian jurisdictions and that under the code the age of criminal responsibility was to be standardised at 10 years or more. That was Australia's response to the United Nations Convention on the Rights of the Child. We declared to the United Nations that all Australian jurisdictions would adopt a minimum age of responsibility of 10.

As has been mentioned in the debate, Tasmania and the ACT are the only two jurisdictions in Australia that have not complied with that Commonwealth undertaking. The best interests of children and young people, whatever their age, should be the paramount consideration for all decision-makers, including parents. It cannot be in the best interests of eight-year-old and nine-year-old children to be placed before the courts. There is probably an argument to suggest that applies even to children older than that.

They did not, but other members might have pointed out the fact that New South Wales is currently thinking of lowering not necessarily the age of criminal responsibility but the age below which there is a rebuttable presumption. We await with interest the report of a committee of the New South Wales Parliament looking into whether they should adjust the rebuttable age downwards.

The Attorney gave a good summary of the various ages of responsibility. As was noted by the Attorney, there are some checks and balances in place, particularly in relation to the existence of the rebuttable presumption, which does give the courts, law enforcement authorities and family support services some discretion in relation to whether or not in certain circumstances a child should be presumed to have had a criminal intent. (Extension of time granted)

I know it is a flawed and difficult debate. As I said, I do not think we can ever suggest that we have got it absolutely right. Who is to say that 10, for instance, is the most appropriate age of criminal responsibility? It is almost an impossible task. As I said before, it is a question of the individual and the collective judgment of this place.

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