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Children Young Persons & Their Families (Youth Courts Jurisdiction & Orders) Amendment Bill (Consistent) (Sections 3, 6, 11, 17, 19(1), 22, 25(i)) [2009] NZBORARp 3 (5 February 2009)

Last Updated: 23 April 2020

Children Young Persons & Their Families (Youth Courts Jurisdiction & Orders) Amendment Bill

5 February 2009

Attorney-General

Children Young Persons & Their Families (Youth Courts Jurisdiction & Orders) Amendment

Bill (PCO 13499/1.8): Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/88

1. I have reviewed this Bill for consistency with the New Zealand Bill of Rights Act 1990.

2. The Bill:

• 2.1 expands the jurisdiction of the Youth Court to allow prosecution of 12 and 13- year-olds in respect of certain serious offences other than murder or manslaughter, which are already provided for from the age of 10 (cl 10);
• 2.2 extends the range of sentencing options available to the Youth Court, including providing for orders to attend parenting, mentoring or drug and alcohol rehabilitation programmes (clause 22); and
• 2.3 extends the maximum length of orders for supervision with activity and supervision with residence and removes the requirement for consent before a supervision with activity order can be made (cl 25).
  

3. While issues under ss 11, 17, 22 and 25(i) of the Bill of Rights Act arise in respect of the Bill, I

conclude that these give rise to no inconsistency.

Lowered age for prosecution

4. The lowering of the age of prosecution for certain offences under the Bill requires consideration of the fair trial rights guaranteed in s 25 of the Bill of Rights Act, and in particular the right in s 25(i) "... in the case of a child, to be dealt with in a manner that takes account of the child's age.". [1]

5. The Committee on the Rights of the Child has stated that the 12 years of age is the absolute minimum age for criminal responsibility, and strongly recommends a minimum age of criminal responsibility of 14 or 16 years. [2]

6. In applying s 25(i) in light of that recommendation, it is important to note that the existing legislation provides a specialised and highly responsive scheme for youth justice matters that requires acknowledgement and accommodation of the needs of young people, including a presumption towards the least restrictive response that is appropriate in the

particular case.[3] These provisions supplement and facilitate the obligation under ss 3 and 6 of the Bill of Rights Act to act consistently with s 25(i) in applying the proposed provisions.

7. It is noted that a young person charged with a serious offence may opt for trial by jury, which will remove the hearing from the Youth Court. In that situation the presiding Judge will be under an obligation to ensure compliance with s25(i) [4] , and the principles underlying the Youth Justice regime will generally continue to be applied[5].

8. The protections for young people under that scheme are further bolstered in relation to prosecution by the requirement in cl 11 (new s 272A(c)) that the young person must understand that his or her act is wrong or contrary to law.

Orders in respect of parents and other caregivers

9. I do not consider that the making of an order requiring attendance at a parenting course constitutes a penalty, and I note that there is no penalty for non-compliance. I also do not consider that the making of such an order raises an issue of discrimination in terms of s 19(1) of the Bill of Rights Act on grounds of family status, which includes, under s 21(1)(l)(iv) of the Human Rights Act, "being a relative of a particular person", as the making of an order against the caregiver of a young person is based upon that particular personal responsibility.

10. It may give rise to an effective detention and so could be seen to engage s 22 of the Bill of Rights Act,[6] but, as such an order involves a court determination, I do not consider that such detention would be arbitrary.

Orders for supervision with residence and activity/programme attendance

11. The provision for orders requiring the young person to attend mentoring programmes, parenting education programmes and drug and alcohol programmes, and the removal of the need for consent before making supervision with activity orders, potentially entail forced association and/or deprivation of liberty and so may also engage ss 17 or 22 of the Bill of Rights Act.

12. As such orders are at the discretion of the Youth Court, and can only be made if they meet the requirements and the objectives of this Part of the Children, Young Persons and Their Families Act 1989, no issue of arbitrariness arises.

13. The provision for orders to attend alcohol and drug rehabilitation programmes could raise an issue in respect of the right to refuse medical treatment under s 11 of the Bill of Rights Act. However, cl 22 provides that no young person can receive or undergo any medical, psychiatric or psychological examination or treatment without consent.

14. This advice has been prepared with the assistance of Hamish McLachlan, Assistant Crown Counsel. In accordance with Crown Law practice, this advice has been peer reviewed by Ben Keith, Crown Counsel.

Yours faithfully

Victoria Casey

Crown Counsel

1. See also United Nations Convention on the Rights of the Child, article 40.

2. United Nations Committee on the Rights of the Child in its general comment

[CRC/C/GC/10, 2007] strongly recommends a lowest age of criminal responsibility of 14 or

16 years.

3. See ss 4(f) and 208 of the Children, Young Persons and their Families Act 1989.

4. See, for example, SC v United Kingdom [2004] ECHR 263; (2005) 40 EHRR 10, [29].

5. R v C (CA312/91, 28/09/91)

6. See, for example, Official Assignee v Murphy [1993] 3 NZLR 62.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the (Youth Courts Jurisdiction & Orders). It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect

of this or any other matter. Whilst care has been taken to ensure that this document is an

accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.