Queensland Law Society has made submissions on increasing the age of criminal responsibility, as well as crucial written and oral submissions to the federal parliamentary inquiry into the family law system.
Age of Criminal Responsibility Working Group Review
QLS has continued its ongoing advocacy on raising the minimum age of criminal responsibility to at least 14. In February we wrote to the Law Council of Australia (LCA) to contribute to a joint submission to the Council of Attorneys-General Age of Criminal Responsibility Working Group Review with the assistance of members of the members of the QLS First Nations Legal Policy, Children’s Law, Human Rights and Public Law and Criminal Law Committees.
The Society strongly supports raising the minimum age of criminal responsibility to at least 14. We have put this position forward at several stakeholder meetings with members of the judiciary and Members of Parliament. A range of key stakeholders have similarly called for an increase in the minimum age. Their views are cogent, evidence-based and, crucially, take into account the medical, behavioural, social and rights-based approaches to dealing with children and young people in the youth justice system.
In our submission to the LCA, we noted the prevalence of young people with mental health and cognitive disabilities within the justice system. It is also well known that there is an over-representation of children from the child protection system within the youth justice system.
Early intervention and diagnosis, coupled with preventative justice reforms, are crucial, as is access to services in regional and remote communities. A whole-of-government approach across departments is needed to ensure that the diagnosis of young people can occur at the earliest opportunity to support rehabilitation and reduce recidivism.
QLS also reiterated its commitment to reducing the disproportionate rates of Aboriginal and Torres Strait Islander men, women and children in jails, and we consider that increasing of the age of criminal responsibility is an important step in this. Policy approaches must be premised and developed in accordance with the principles of self-determination. The recent release of the ‘Closing the Gap Report 2020’ is a significant and timely reminder that urgent change in this respect is needed.
Children occupy a very vulnerable space in our society. QLS will continue to advocate for early intervention and diversionary programs as an alternative to punitive justice, which has long-term and detrimental outcomes.
Response to family law inquiry
In December 2019, QLS provided a submission to the Joint Select Committee on Australia’s Family Law System. In March 2020, QLS representatives appeared at the Joint Select Committee public hearing.
QLS expressed concern that the terms of reference imply a pre-determined outcome in relation to a number of issues, including in relation to family violence.
Importantly, QLS drew attention to the lack of empirical evidence to support the notion that false allegations of family violence are regularly made in an attempt to gain an advantage in family law proceedings. In contrast, extensive research confirms the difficulties that victims of domestic and family violence encounter when disclosing their experience to courts; including fear of not being believed and fear that disclosure will increase the risk of violence to them or their children.
QLS strongly supports the robust processes already in place which dictate how evidence is to be received in legal proceedings, including in family law proceedings, and noted that judicial officers are highly experienced in making determinations in the face of complex and often conflicting evidence.
The proper determination of family law matters requires a high level of skill and extensive knowledge of a wide range of issues and areas of substantial law.
In the experience of our members, a lack of expertise in family law can result in erroneous decisions and poorer outcomes for families. There is a significant risk that the quality and propriety of family law decisions will be compromised where determinations are made by judicial officers without family law expertise. These decisions are also more likely to be appealed, further increasing the demand on court services.
We maintain the view that the proposed court amalgamation does not represent evidence-based policy. An increased capacity to properly hear and determine family law matters, particularly complex matters, without additional funding, has not been adequately demonstrated. Improvements to efficiency cannot occur without appropriate resourcing.
At the public hearing, QLS representatives reiterated the view expressed in the submission in relation to the role of solicitors in family law proceedings. QLS noted that access to legal assistance in the early stages of a dispute can prevent or reduce the escalation of legal problems and reduce cost to the justice system overall. Private legal practitioners provide high-quality, tailored family law advice and play an important role in resolving family law matters, including by identifying relevant issues and providing relevant information to the court. Many family law matters are resolved without any court intervention and very few reach final defended hearing stage. Access to legal advice and representation is key in the resolution of matters and helps to ensure litigants are properly informed.
Copies of QLS submissions are available on the QLS website. If you would like to learn more about how you can get involved with the legal policy work at QLS, keep an eye out for QLS Update, in which we regularly seek member feedback on our legal policy work.
This story was originally published in Proctor May 2020.