New Zealand Law Society

SUBMISSIONS ON THE CHILDREN, YOUNG PERSONS AND THEIR FAMILIES AMENDMENT BILL (NO.4)

Introduction

The Society considers that the majority of the changes proposed by this Bill are non-contentious. These submissions suggest clarification of certain clauses and additional amendments.

Submissions are made in respect of clauses 6, 10, 14, 23 and 24.

Clause 6 - Principles

This clause would repeal and substitute section 208(g). The proposed changes are intended to reinforce the principle that measures for dealing with offending by children and young persons should recognise the interests of victims.

The Society supports the intention to recognise victims’ interests more firmly. In its view, the proposed changes do little to achieve that aim. It suggests that the principles provision should, instead, require victim participation at all stages of the Youth Justice process.

Recommendation

That, to strengthen the recognition of the interests of victims, section 208(g) be amended to encourage victim involvement in all stages of the Youth Justice process.

Clause 10 – Restriction on power of Court to order child or young person to be detained in custody

The proposed amendment creates an additional ground for a child or young person to be held in the custody of the Chief Executive, or an iwi social service or cultural social service. The proposed addition allows the Court to remand a child or young person in custody if that child or young person has previously been released on bail and has "contravened seriously" a condition of that bail, and is likely to "contravene seriously" a condition of bail again.

The Society opposes the proposed change. It appears to be inconsistent with the generally held principles relating to bail. The starting point for consideration of a remand in custody should be whether there is any just cause for continued detention. Ordinarily, this means consideration by the Court of whether the defendant may fail to appear for Court as required, whether there is a risk of further offending and, finally, whether there is a risk that there may be interference with witnesses or other evidence. The existing subsections regarding an assessment of whether a child or young person is likely to abscond or likely to be violent sufficiently cover those issues.

It is also unclear what would amount to serious contravention of a bail condition. For example, is repeated breach of a bail condition required, or a single breach? Does it mean that further offences have been committed by the child or young person? Such lack of clarity is not desirable when a child or young person’s liberty is in question.

Recommendation

that the proposed amendment to section 239(2) of the principal Act should not include subsection (iii); and
if the amendment to section 239(2) is proceeded with, the words "contravened seriously" be defined.

Clause 14 – Persons entitled to attend family group conference

Proposed new section 251(1A) would give a Youth Justice Co-ordinator power to exclude people from a family group conference. The Society does not oppose the amendment, assuming that Youth Justice Co-ordinators will use such a power with caution.

It is suggested, however, that section 323 of the principal Act be amended to give proper effect to section 251(1)(g). Section 251(1)(g) provides that a solicitor or Youth Advocate representing a young person is entitled to be present at an FGC. For effect to be given to that provision, section 323 of the principal Act should allow the appointment of a Youth Advocate prior to a pre-charge FGC.

The grounds for this proposed amendment to section 323 are:

For some time it has been recognised that interventions within the Youth Justice system generally become less effective the more times a child or young person goes through them. Specifically this was recognised in the Report of the Ministerial Task Force on Youth Offending, April 2002. Following that report, a Youth Offending Strategy was also produced in April 2002.

Anecdotal evidence suggests that where pre-charge FGCs are held without a Youth Advocate being present, agreements reached are often unrealistic. This is particularly true in respect of reparation plans. This unfortunately has an effect of setting a young person up to fail when he or she is not able to comply with those agreements. Further intervention may then be required.

Not only does this involve fairness issues for the young person involved but also for the victims of the offending. In such situations it is not unusual for victims to feel let down by the system.

It is submitted that the amendment proposed to section 323 would be consistent with Schedule 2 of the Children’s Commissioner Act 2003. Schedule 2 is the United Nations Convention on the Rights of the Child. Article 2 of the Convention of the Rights of the Child states:

• Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
• Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

Article 12 states:

• Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Recommendation

That properly to give effect to section 251(1)(g) of the principal Act and to ensure that the principal Act is consistent with Schedule 2 of the Children’s Commissioner Act 2003, section 323 of the principal Act should be amended to allow the appointment of Youth Advocates prior to a pre-charge FGC.

Clause 23 – Power of Courts to discharge information

Clause 23 adds two new subsections to the existing section 282. The intention is to clarify the position in respect of files held by agencies following the discharge of an information.

Proposed subsection (5) makes it clear that proposed subsection (4) does not authorise the New Zealand Police to retain a record that would be required by law to be destroyed upon acquittal. It is submitted, however, that the proposed subsection (5) does not go far enough. It should state explicitly that photographs, fingerprints, palmprints and footprints relating to discharged informations must be destroyed by the New Zealand Police.

Further, it is submitted that the words "(not being a record of particulars obtained under section 57 of the Police Act 1958)" in proposed subsection (5) be removed. Their inclusion is unnecessary and could potentially cause confusion. A preferable way of resolving this issue would be to amend section 57 of the Police Act 1958 to make it clear that a section 282 discharge is equivalent to an acquittal for the purposes of that section. Accordingly, it would be clear that any photographs, fingerprints, palmprints and footprints of a young person must be destroyed following a section 282 discharge.

Recommendation

that the proposed section 282(5) be amended to state explicitly that the police must destroy photographs, fingerprints, palmprints and footprints of a young person following a section 282 discharge;
that the bracketed words in the proposed section 282(5) referring to section 57 of the Police Act 1958 be removed; and
that section 57 of the Police Act 1958 be amended to make it clear that a section 282 discharge is equivalent to an acquittal, and accordingly for the purposes of that section means that the police must destroy any photographs, fingerprints, palmprints or footprints of the young person involved.

Clause 24 – Orders of the Court

Clause 24(2) amends the existing section 283(o). Its effect is to lower the age at which a young person may be convicted and transferred to the District Court for sentencing in respect of purely indictable offences. The age would be changed from 15 years to 14 years.

The Society does not take issue with the age reduction. It is submitted, however, that young people should not be transferred to the District Court for sentence unless there is no other option. This could best be reflected by an additional principle being added to section 208 of the principal Act.

Consideration should also be given to the amendment of section 283(k) of the principal Act. This currently allows the Youth Court to make an order placing a young person under the supervision of the Director-General for a period not exceeding six months. It is suggested this should be amended to allow a period of up to two years.

This suggested amendment would be consistent with the periods of supervision for adult offenders under the Sentencing Act 2002. The obvious benefit of increasing the time-frame within the Youth Court jurisdiction is that this would provide a more realistic sentencing option in serious cases. Presently, matters are transferred to the District Court on some occasions because of the lack of appropriate measures that can be taken in the Youth Court. If the Youth Court does have sufficient measures within its jurisdiction, then some matters that would presently be transferred to the District Court could be retained within the Youth Court jurisdiction. The increased time-frame, it is submitted, improves the likelihood of rehabilitation of a young person.

Recommendation

to include a new principle in section 208 of the principal Act that child and young people should remain within the jurisdiction of the Youth Court unless there is no alternative to transferring them to the District Court;
to extend the time-frame under section 283(k) of the principal Act from six months to two years.

Chris Darlow

President

6 September 2004