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Children, Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill - Submission to the Social Services Committee [2009] NZHRCSub 4 (17 April 2009)

Last Updated: 29 April 2015

_CYPF/46

Submission on the

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



Social Services Committee

17 April 2009

Contact person: Sylvia Bell
Principal Policy and Legal Analyst

Phone 09 306 2650

1. INTRODUCTION

1.1 This submission is made by the Human Rights Commission (the Commission). The Commission’s statutory role is set out in the long title to the Human Rights Act 1993 which refers to the better protection of human rights in New Zealand in accordance with the United Nations Covenants and Conventions on human rights.

1.2 In 2004, the Commission published Human Rights in New Zealand Today: Nga Tika Tangata o te Motu (HRNZT). HRNZT was the first comprehensive assessment of how well human rights are recognised and respected in New Zealand. One of the issues identified was the need to ensure that children or young people who are detained under youth justice provisions are dealt with in a way that acknowledges their needs and gives them the opportunity to develop in a responsible, beneficial and

socially acceptable way.¹

1.3 The Commission acknowledges that the Children, Young Persons and their Families (Youth Courts Jurisdiction and Orders) Amendment Bill (the Bill) addresses the complex issues of young repeat serious offenders in a careful and principled way. Generally it takes account of the evidence that subjecting children and young people to criminal proceedings produces few long term positive outcomes.

2. SUMMARY

2.1 The Commission welcomes:

 The new guiding principle, that:

any measure for dealing with offending by a child or young person should so far it is practicable to do so address the causes underlying the child’s or young person’s offending [amending S.208(ff)]

 Reiteration of the guiding principle that:

unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter [S.208(a)]

 Re-enactment and extension of the requirement that a youth justice co- ordinator ensure that relevant information and advice are made

¹ HUMAN RIGHTS IN NEW ZEALAND TODAY: NGA TIKA TANGATA O TE MOTU Human Rights Commission, Wellington (2004) at 207 referring to Children Young Persons and the Families Act 1989, s.4(f)

available to family group conferences and that it include information relating to the health and education needs of the child or young person

 Expanding the orders available to Youth Courts sentencing.

2.2 The Commission opposes:

 Amendment of the Children, Young Persons and Their Families Act (the Principal Act) to expand the jurisdiction of the Youth Courts making 12 and 13 year olds liable to prosecution in respect of certain serious offences other than murder or manslaughter. This is inconsistent with the recommendation by the Committee on the Rights of the Child that New Zealand should raise – rather than lower - the age of criminal responsibility and the requirement under international human rights law which, as a general principle, prevents the attribution of criminal responsibility to children and young people under the age of

18.¹

 Increasing the range of sentencing options to require young offenders to attend a programme which will have military style components despite the fact that there is no international evidence to support the effectiveness of what are basically boot camps for juveniles.

2.3 The Commission is also concerned that inadequate resourcing will effectively undermine the potential benefits of both the expanded options available for sentencing and the extended periods of supervision, including supervision with residence and with activity orders.

2.4 The Commission recommends that:

 The age of prosecution for offences other than murder or manslaughter is not lowered

 Adequate resources are made available to ensure that the new sentencing options are a genuine, workable option

 Given the lack of evidence that they are successful, boot camps are not introduced as an option for dealing with recidivist offenders.

3. A HUMAN RIGHTS APPROACH

3.1 The Commission takes a human rights approach when reviewing legislation. A human rights analysis requires a strong evidential basis and a rigorous legal analysis of the rights involved.

3.2 A human rights approach itself is made up of six components. Namely:

[i] linking of decision making at every level to the relevant human rights standards;

[ii] identification of all the relevant human rights of all involved and, in the case of conflict, the balancing of the various rights to maximise respect for all rights and right-holders, favouring the most vulnerable if necessary;

[iii] an emphasis on the participation of individuals and groups in decision making;

[iv] accountability for actions and decisions, which enables individuals and groups to complain about decisions that affect them adversely;

[v] non-discrimination among individuals and groups through the equal enjoyment of rights and obligations of all; and

[vi] empowering individuals and groups by their use of rights as leverage

for action and to legitimise their voice in decision making.

3.3 Not all six will apply in every situation. Here, the most relevant are the link with certain human rights standards and the need to balance the rights of different rights holders.

4. INTERNATIONAL HUMAN RIGHTS STANDARDS

4.1 The international human rights standards are the rights set out in the Universal Declaration of Human Rights² and codified in various United Nations Covenants and Conventions. Those most relevant to this submission are the International Covenant on Civil and Political Rights (ICCPR) and, most importantly, the Convention on the Rights of the Child

(UNCROC).

International Covenant on Civil and Political Rights (ICCPR)

4.2 Under Art.14(4) of the ICCPR, where juveniles are involved criminal procedures should “take account of their age and the desirability of promoting their rehabilitation”.

4.3 The ICCPR is substantially reproduced in the New Zealand Bill of Rights Act 1990 (NZBoRA). Section 25(i) of the NZBoRA guarantees the right of a child who is charged with an offence to be dealt with in relation to the determination of the charge “in a manner that takes account of the child’s age”.

4.4 The Children, Young Persons and their Families Act is recognised as an enlightened and innovative. The restorative justice provisions in Parts 4

² United Nations (December 1948) GA Resolution 217ACCII:Geneva

and 5 in particular have been widely praised and emulated internationally³. They have been described⁴ as a specific expression of the policy in s.25(i) which was itself intended to “create a right for children to be dealt with in special and appropriate ways”⁵ and “cover any case and any circumstance where the youth of the person called for special protection”⁶. The provisions in the Children, Young Persons and their Families Act may be supplemented by the Courts to ensure that there is no breach of the NZBoRA⁷.

4.5 The Attorney-General’s opinion under s.7 of the NZBoRA recognises the importance of the framework in the Principal Act but considers that the requirements of s.25(i) are satisfied in relation to the Bill because it would not subvert the “specialised and highly responsive scheme” in the legislation⁸. If a young person who is charged with a serious offence opts

for trial by jury (thus removing the hearing out of the Youth Court) then the Judge has an obligation to ensure compliance with s.25(i). The principles underlying the Youth Justice regime will still apply and the Judge must be satisfied that the young person understands that their act was wrong or contrary to law. That is, the doli incapax presumption is rebutted⁹.

4.6 The Commission questions diluting the protection that currently applies to children and young people aged 12 and 13 for certain categories or types of offence. This appears to suggest that a child or young person who commits a more serious offence is also more likely to understand the nature of his or her actions than one who commits a non-serious offence. There is no logical reason why this should be the case.

³ Fortin J, CHILDREN’S RIGHTS AND THE DEVELOPING LAW, Butterworth’s, London (1998) at 448. The author notes that “an important benefit of the system is that children are not labelled criminals by entering the system at a relatively early age. It prevents them acquiring a record of criminal offences long before they have developed a more responsible approach.”

⁴ _{Per Baragwanath J in R v Hamilton (HC, Whangarei, T030025, 16/9/03), para 47}

⁵ A & P Butler, THE NEW ZEALAND BILL OF RIGHTS ACT: A COMMENTARY LexisNexis, 2006 at 23.11.2 citing A BILL OF RIGHTS FOR NEW ZEALAND: A WHITE

_{PAPER (1985) para 10.142 at p.103}

⁶ _{Ibid. White Paper at para 10.143 at p.103}

⁷ _{Baragwanath J in R v Hamilton Supra (fn 6) at 882}

⁸ Ministry of Justice, BILL OF RIGHTS ACT 1990: CHILDREN YOUNG PERSONS AND THEIR FAMILIES (YOUTH COURTS JURISDICTION AND ORDERS) AMENDMENT:

_{Consistency with the New Zealand Bill of Rights Act 1990 (5/2/09) at paras 6 et seq.}

⁹ Doli incapax is a fundamental principle of the criminal justice system designed to ensure that a child is not convicted of an offence when they do not understand the nature of their

actions: Walsh, C “Irrational presumptions of rationality and comprehension” (1998) at http://webjcli.ncl.ac.uk/1998/issue3/walsh3.html

United Nations Convention on the Rights of the Child (UNCROC)

4.7 New Zealand ratified UNCROC in 1993. UNCROC reflects a growing recognition that “... children’s rights are more extensive than those of adults because of their increased vulnerability to harm, their more limited understanding of the world and their greater susceptibility to pressure to comply with those in authority.” ¹⁰

4.8 UNCROC establishes a comprehensive set of rights for people under 18.

The most important of these are:

 The arrest, detention and imprisonment of a child shall be a measure of last resort and for the shortest period of time: Art.37(b)

 Children alleged or proved to have offended shall be treated in a manner consistent with the promotion of the child’s sense of dignity and worth and which reinforces the child’s respect for the rights of others: Art.40(1)

 Children alleged or proved to have offended shall be treated in a manner which takes into account the child’s age and desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society: Art.40(1)

 Government should establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law: Art.40(3)(a)

 Government should promote the establishment of laws, processes and institutions specifically applicable to children who are alleged or proved to have offended and these shall, wherever appropriate, include measures for dealing with children without resorting to judicial proceedings: Art.40(3).

4.9 The Convention establishes three fundamental principles which should underscore youth justice systems¹¹:

 Children should be treated respectfully and in a way that takes account of their age and promotes their sense of dignity and worth and their

¹⁰ Wing Lo T, Maxwell G and Wong D ALTERNATIVES TO PROSECUTION: REHABILITATIVE & RESTORATIVE MODELS OF YOUTH JUSTICE, Marshall Cavendish Academic (2005) at p.6

¹¹ See further Ludbrook R “Addressing the underlying causes of offending – New Zealand’s obligations under International Law: What influence have they had on our youth justice

system?” Paper presented at IPS Forum (26/2/2009) available at www.ips.ac.nz/events/downloads/2009/Robert%20Ludbrook.doc

respect for human rights and is likely to promote their reintegration into society (a principle that is reflected in s.4(f)(ii) of the Principal Act)

 Children should, wherever appropriate, be dealt with outside the criminal justice system (reflected in s.5(b) and s.208(a)(e) & (h) of the Principal Act)

 Children should only be arrested, detained or imprisoned as a last resort and for the shortest appropriate period of time (s.208(f) Principal Act).

4.10 The Commission recognises that aspects of the Bill such as the concept of the least restrictive intervention which is reflected in the notion that criminal proceedings should only be relied on as a last resort when there are other options available, appears to be compatible with the requirements of UNCROC. The fact that the increased range of orders that would be available to the Court if the Bill is enacted includes orders designed to respond to the underlying causes of offending is also consistent with sections of Art.40.

4.11 However, the same cannot be said of the requirement that States should establish a minimum age of criminal culpability. Although relevant international commentary and case law¹² provide no indication what that age should be – and different ages attract criminal responsibility in different countries¹³- the UN Committee responsible for monitoring compliance with UNCROC has commented negatively on the age at which a child can be charged with a serious criminal offence in New Zealand¹⁴.

4.12 In response to New Zealand’s first report in 1997 the Committee recommended an increase in the minimum age at which a child can be charged with very serious offences¹⁵. In response to New Zealand’s second country report the Committee recommended that New Zealand

should “raise the minimum age of criminal responsibility to an internationally acceptable level and ... ensure that it applies to all criminal offences.”¹⁶

¹² _{T & V. United Kingdom (2003) 36 HERR CD 104}

¹³ _{See Appendix 1}

¹⁴ _{The UN High Commissioner for Human Rights commenting on the United Nations}

Standard Minimum Rules for the Administration of Juvenile Justice (‘Beijing Rules’) notes that while the minimum age will vary widely according to history and culture, the modern approach should involve consideration of whether a child can live up to the moral and psychological components of criminal responsibility. That is, whether a child by virtue of his or her individual discernment and understanding can be held responsible for antisocial behaviour. If the age is too low or there is no limit at all, the notion of responsibility becomes meaningless. The commentary can be accessed at www.unhchr.ch/html/menu3/b/h/_comp48.htm

¹⁵ _{Concluding Observations of the Committee, CRC/C/15/ADD.71 24/1/97}

¹⁶ _{Concluding Observations of the Committee, CRC/C/15/ADD.216: para 21(a) 3/1/0/03}

4.13 If the Bill is enacted in its present form it would be inconsistent with international best practice.

5. INCREASED RANGE OF SENTENCING OPTIONS

5.1 The Bill will increase the sentencing options for dealing with young offenders available to Youth Courts. Many of the proposed changes have considerable merit. The Commission considers that if there is a genuine commitment to preventing children and young people from becoming involved with the criminal justice system, as a matter of principle these orders should also be available to the Family Court.

5.2 One of the new orders will allow the length of “supervision with residence orders” under which young people can be detained in a Child, Youth and Family residence, to be doubled. The reason for this is that professionals working with young people at present consider that sentences are simply not long enough to help children and young people address issues relating

to drugs and alcohol or those who have behavioural problems.¹⁷

5.3 The Commission recognises that it is important that young people have support to deal with challenging behaviours, but it also considers that there needs to be some recognition that custody can also have negative effects on children and young people. In order, therefore, for extended residency orders to work the focus has to be on ensuring high quality programmes and the necessary resourcing.

5.4 The explanatory note to the Bill suggests that the efficacy of alcohol and drug rehabilitation programs may be compromised by the availability of services. The Commission has drawn attention to the lack of mental health and addiction services for young people since 2004 and considers it important that there is adequate funding to ensure that quality services are available in fact, and not only when a child or young person has committed serious offences.

6. BOOT CAMPS

6.1 The new sentencing options will allow the Youth Court to make a “supervision with activity” order which would require the young offender to attend a program which will have a three month boot camp component along with mentoring and supervision. The Bill will not retain the current requirement that a child or young person consents to the making of an order.

¹⁷ Ministry of Social Development (2007)

6.2 The intention is to provide the most serious and recidivist offenders with clear boundaries while reinforcing self-discipline, personal responsibility and community values.¹⁸ During the First Reading of the Bill Minister Paula Bennett indicated that such camps would be under the control of army or ex-army staff “who have a particular aptitude for working with

young people”.

6.3 Boot camps operate on the assumption that the short sharp shock delivered by such programs deters young people from further offending. However, there is a significant amount of evidence that programs based on military models which emphasise structure, discipline and challenge are, in fact, not effective in reducing recidivism¹⁹.

6.4 Most evaluations of such programmes have found that gains are usually short-lived without the support of family and friends after release and if social problems such as poor education, employment and poverty are not addressed²⁰.

6.5 There is also evidence that voluntary participation is an important factor in producing positive changes in offenders²¹. The Attorney-General considers that while the removal of consent before making a supervision with activity order has the potential to contravene s.22 of the NZBoRA

(freedom from arbitrary detention), the fact that such orders are at the discretion of the Youth Court and can only be made if they meet the requirements of the Principal Act, no issue of arbitrariness arises²².

6.6 This does not however mean that these initiatives are consistent with the international standards on juvenile justice. As Children’s Advocate, Robert Ludbrook notes²³:

¹⁸ Children, Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Bill), Explanatory Note at 29

¹⁹ See for example, MacKenzie D, “Evidence–Based Corrections: Identifying what works”

CRIME & DELINQUENCY Vol.46. No,4 Oct 2000 457,458; Wilson D, MacKenzie D & Mitchell F Effects of Correctional Boot Camps on Offending 2003:1 (updated 2008) A Campbell Collaboration systemic review http://www.aic.gov.au/campbellcj/reviews/titles.html; National Institute of Justice, Department of Justice, USA “Correctional Boot Camps – Lessons from a decade of research” 2003, http://www .ncjrs.gov/txtfiles1/nij/107018.txt; John Howard Society, BOOT CAMPS: ISSUES FOR CANADA (1998) http://www.johnhoward.ab.ca./PUB/C34.htm; Burrell I “Boot camps for young offenders

‘were a failure’”: The Independent (2002) (reporting on a Home Office Study on the

_{Colchester project)}

²⁰ _{Ibid. John Howard Society at 9}

²¹ _{Ibid, at 12}

²² _{Supra fn 9 at paras 11 & 12}

²³ _{Supra fn 13 at 8}

There has been no suggestion ... that boot camps should be set up for adult offenders. Instead of children and young people being treated in a manner that takes account of their age, inexperience and immaturity they are to be exposed to harsh and dehumanising punishments which would not be considered acceptable for adult offenders.

7. CONCLUSION

7.1 The Human Rights Commission considers that the Bill has considerable merit. While it explicitly states that any measures for dealing with children and young people should attempt to address the causes underlying offending, many of the risk factors associated with offending are linked to the social and economic circumstances of young offenders. There is good evidence that appropriate assistance is more likely to be effective than

punishment²⁴. More attention should therefore be paid to the environments that produce damaged children rather than to punishing them further. A

child’s right to survival, protection, education and to be treated fairly are at the heart of preventing juvenile crime²⁵.

7.2 The Commission therefore recommends that:

 The age of prosecution for offences other than murder or manslaughter is not lowered.

 Adequate resources are made available to ensure that the new sentencing options are a genuine, workable option.

 Given the lack of evidence that they are successful, boot camps are not introduced as an option for dealing with recidivist offenders.

²⁴ Maxwell G et al. ACHIEVING EFFECTIVE OUTCOMES IN YOUTH JUSTICE: FINAL REPORT (2004) Ministry of Social Development, Wellington

²⁵ UNICEF NZ Summary position paper: “Young and accountable? Should New Zealand

lower the age of criminal prosecution?” (2008)

APPENDIX 1: MINIMUM AGE OF CRIMINAL RESPONSIBILITY IN COMPARABLE JURISDICTIONS²⁶

²⁶ Countries with an age of responsibility less favourable to children accused of crimes under 10 are Afghanistan, Antigua & Baruda, the Bahamas, Bangladesh, Belize, Botswana, Belize, Botswana, Brunei, Cyprus, Egypt, Ethiopia, Grenada, India, Indonesia, Iran, Iraq, Jordan, Kenya, Kuwait, Lebanon, Lesotho, Malawi, Malta, Myanmar, Namibia, Nigeria, Oman, Pakistan, Papua New Guinea, Philippines, Qatar, Samoa, Saudi Arabia, Singapore, the Solomon Island, Switzerland, Syria, Thailand, Trinidad and Tobago, United Arab Emirates, Tanzania, Yemen, Zambia and Zimbabwe. This information is taken from the Department of Justice and Constitutional Development available at http://www.pmg.org.za/docs/2003/appendices/030310minimumage.htm.

²⁷ The age of criminal responsibility was lowered by the Crime and Disorder Act 1998. It is

among the lowest in Europe. International pressure to review it is increasing: See, for e.g., Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland CRC/C/15/Add 34 (Centre for Human Rights, Geneva, 1995) para 36.

²⁸ The situation in Australia varies from state to state. There is a rebuttable presumption of

doli incapax for children aged 10 to 13. Offenders under the age of 18 in most states and under 17 in Queensland are treated by a separate Youth Court except for the most serious offences.