Victoria ‘lagging’ on justice reform, former advisory chair says

The former chair of Victoria’s independent Sentencing Advisory Council says the government is lagging on critical reforms to the criminal justice system, despite the premier’s promise to start work on raising the age of criminal responsibility within weeks.

Daniel Andrews on Thursday said Victoria would raise the age of criminal responsibility from 10 even if state and territory governments failed to reach a national consensus.

Monash University Emeritus Professor Arie Freiberg, who left his role at the sentencing council in October, welcomed the comments but said decisive action was urgently needed on broader justice reforms, such as bail and drug laws, to keep vulnerable people out of prison.

“We are supposed to be a progressive jurisdiction, we ought to be in the lead, not lagging, especially when we’ve got such an enormous empirical base for all of these,” Freiberg told The Age this week.

“Sometimes you’ve got to take the initiative.”

Freiberg said the government should not wait any longer to overhaul the Bail Act, after a damning coroner’s report in January into Veronica Nelson’s avoidable death in custody found the Indigenous woman’s human rights were repeatedly breached.

Premier Daniel Andrews has vowed to move on raising the age of criminal responsibility within weeks, if state and territory governments across the country cannot reach a national consensus soon.Credit: James Brickwood

Coroner Simon McGregor said the laws were incompatible with the Charter of Human Rights and discriminatory towards First Nations people.

A parliamentary inquiry handed down 11 months ago also called for sweeping changes to reduce the number of people in jail on minor non-violent charges before sentencing.

Andrews has committed to overhauling the law in the first half of this year, but said it needed to be done right after 2018 reforms responding to the Bourke Street attack made it harder to get bail. In December, 40.8 per cent of people in Victorian prisons were unsentenced.

Child protection and a youth justice bill will also be on the agenda for the coming months, he said.

The government is separately decriminalising public drunkenness in November after a 12-month delay.

Freiberg said that should have happened 140 years ago and that it was time to treat drug possession as a health issue rather than a criminal one because the war on drugs had been “a colossal failure”.

“While we deal with these in a criminal justice fashion, we’re going to invest resources in the wrong places, mainly in jails.”

Freiberg’s views were shared by Victorian Aboriginal Legal Service chief executive Nerita Waight, who said the government should stop dithering on raising the age of criminal responsibility.

She said Victoria should lift the age to at least 14 with no exceptions.

“This is also something that stakeholders have been briefing the government on a near constant basis when it comes to justice issues, just like we have with bail [reforms],” Waight said.

“Let’s just move.”

As of this month, there were no children aged 10 to 12 in Victoria’s youth justice system, but there were eight aged 13 or 14.

Andrews said he was not prepared to wait until the next Council of Attorneys-General meeting in April to start the process. He refused to say whether he supported lifting the age to 12 or 14, but said there could be a different age for serious crimes.

Aboriginal and Torres Strait Islander children aged 10 to 17 are six times more likely than non-Indigenous children, on a per-capita basis, to be in youth detention in Victoria.

Nationally, 10-year-olds can be considered criminally culpable, but federal, state and territory attorneys-general late last year released a draft report that recommended raising the age of criminal responsibility to 14.

Attorneys-general previously agreed to consider lifting the minimum age to 12.

The Northern Territory government will raise the age of criminal responsibility to 12 from next year, the ACT will gradually increase it to 14 by 2027, and the Tasmanian government said it would lift the minimum age on incarcerating youth to 14, but keep the age of criminal responsibility at 10.

The Queensland government ruled out raising the age in the foreseeable future as part of its tough-on-crime 2020 election campaign.

The Greens and the Law Institute of Victoria also said the state should raise the age to 14, not 12, with extra investment in intervention and prevention.

Law Institute of Victoria president Tania Wolff said that was the minimum standard set by the United Nations and was backed by medical research about the cognitive development of children.

The Greens spokeswoman for justice, Katherine Copsey, said incarcerated children were more likely to have ongoing contact with the prison system, “not due to their own complex needs, but because of the way our society chooses to respond”.

But shadow attorney-general Michael O’Brien said there were already significant protections to limit the prosecution of children and the government should not race ahead of the rest of the country.

“There are many constructive things the Victorian government can and should be doing to keep children out of the justice system.”

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