‘Adult time’ sentencing laws incompatible with human rights, attorney-general admits

3 months ago 19

Treating more children as adults in the criminal justice system under the Victorian government’s proposed “violent crime, adult time” reforms is incompatible with the state’s human rights charter.

Attorney-General Sonya Kilkenny conceded the legislation – which will include maximum penalties of life in prison for teenagers convicted of aggravated home invasions and carjackings – was in breach of the government’s own commitment to the rights of children.

“In my view, the reforms serve a pressing and important purpose, where there is no less restrictive means available,” Kilkenny wrote in a statement of compatibility that was tabled in parliament along with the legislation on Tuesday.

“However, on balance, I acknowledge that the reforms interfere with fundamental protective and criminal process rights of children to a significant extent, in circumstances where other jurisdictions and international bodies have deemed such an approach to be incompatible with children’s rights.”

The far-reaching changes to how the criminal justice system treats children charged with certain violence offences will be rushed through parliament with little scrutiny after the opposition derided the proposed laws as broken and flawed, but decided to vote for them anyway.

The Queensland-inspired legislation means teenagers as young as 14 charged with carjacking, home invasions and other violent offences will be dealt with by adult courts and potentially attract far heftier sentences than they would receive in the Children’s Court.

The government has allocated just one hour to debate the legislation in the lower house before it is voted on and sent to the Legislative Council. Premier Jacinta Allan said the upper house would sit until the legislation passed this week.

Allan announced the reform three weeks ago. At the time, no legislation had been drafted.

The plan was widely condemned by social justice groups as a breach of human rights that lacked evidence and which would have a detrimental impact on vulnerable children.

These concerns were confirmed by Kilkenny, who, in her compatibility statement, noted the proposed laws “constitute significant limits on the fundamental rights of children who are by their nature a vulnerable cohort”.

But she said the legislation was necessary to “address compelling and pressing” community safety concerns heightened by serious and violent offending by children.

She said children were disproportionately represented among perpetrators of rising crime in Victoria and that about half of all home invasions and carjacking over the past year had been committed by offenders under the age of 18.

Opposition leader Jess Wilson and shadow attorney-general James Newbury said the proposed laws were weak and being rushed through parliament to avoid proper scrutiny.

“This is a premier who doesn’t believe in her own legislation,” Wilson said before the legislation was tabled. “She is responding to polling and a nervous backbench rather than the needs of the community in the context of a crime crisis.”

Newbury said the legislation was “full of loopholes”. A 14-year-old subject to the proposed new sentencing regime could, for example, request to be dealt with in the Children’s Court on mental health grounds.

Kilkenny said this would only occur in exceptional cases; for example, where a 14-year-old had cognitive development issues.

“It is the intention ... that all of these crimes, all of these offences, will be heard in the County Court and subject to adult sentencing laws,” she said.

Kilkenny said aspects of the bill could become law immediately, and brushed off criticism that the opposition and crossbench MPs had not been given a proper opportunity to scrutinise the legislation.

The opposition wants the change to apply to more offences, including rape.

“We will be formally calling, through amendment, for the laws to be tougher because crimes like rape should not be overlooked,” Newbury said. “We will call for loopholes to be closed.”

However, a joint Coalition party room meeting on Tuesday morning voted to support the legislation regardless. “We won’t be opposing Labor’s weak laws,” Newbury said.

The government also announced an expansion of the carjacking offence, which currently requires the theft of a vehicle through the use of fear or threats.

The bill will expand this to include circumstances where a baby or child under the age of 10 is in the vehicle alone, even if the offender was not aware of their presence. The law, as it stands, treats this as theft rather than carjacking.

The government further announced funding for the state’s new violence reduction unit. Schools will be linked with programs – including those provided by sporting organisations such as Melbourne Storm, Melbourne Victory and the Western Bulldogs – to engage children.

Dozens of community groups signed a joint letter to the premier on Tuesday slamming the changes as a “serious step backwards for Victoria”.

“The evidence is clear: harsher penalties and adult sentencing do not deter youth offending or improve community safety. Instead, they increase trauma, reoffending and long-term disadvantage.”