Children and Young People Act 2008 Philosophy
Overview • Welcome and introduction • Key changes care and protection, youth justice, childcare and employment • Implements recommendations from reviews and inquiries • Review of the Act commenced 2002 • Extensive community consultation • Legislative amendments
Consultation overview • 3 phases consultation between 2002 – 2007 • 2002 - 2004 • Steering committee, forums, submissions • Government reviews and responses (Vardon, Murray, HR Audit of Quamby) • Key findings report tabled Feb 2006 • 2006 consultations on key policy areas • Second key findings report tabled Dec 2006 • 2007 release of exposure draft • Third key findings report tabled Aug 2007
Legislative Amendments • July 2005 - Children and Young People Amendment Act 2005 • March 2006 - Children and Young People Amendment Act 2006 • November 2006 - Children and Young People Amendment Act 2006 (No.2) • March 2007 - Children and Young People Amendment Act 2007
Care and Protection Reforms • Policy Drivers • Responding early to concerns about children and young people • Protecting children and young people in need of care and protection • Improving supports for children and young people in out of home care • Safeguarding children and young people in need of therapeutic protection
Youth Justice ReformsProtecting human rights in youth detention (DHCS) • Policy drivers • Improving accountability and transparency • Protecting minimum human rights • Protecting safety of everyone at the detention place • Modernising, consistency and streamlining (sentencing)
Childcare Services ReformsImproving accountability and transparency • Policy drivers • Ensuring safety and wellbeing of children who use childcare services • Improving accountability and transparency - parents and general community
Employment ReformsEnhancing safe employment opportunities • Policy drivers • Ensuring safe work opportunities • Improving accountability and transparency
General changes across the ActImproving collaborative responses (DHCS) • Interagency collaboration – information sharing, assistance • Increasing participation - Family Group conferencing • Protecting interests of children - suitable entity, research
Children and Young People Act 2008 Detail of Act
Care and Protection Reforms Overview • Outline of chapters Responding early to concerns about children and young people Protecting children and young people in need of care and protection Improving outcomes for children and young people in out of home care and therapeutic protection
Care and Protection Reforms Responding early to concerns about children and young people • Pre-natal information sharing • Child concern reports and initial assessments • Exception mandatory reporting • Appraisal powers – visual examination and interviews • Appraisal orders • Assessment orders – criteria and procedures to streamline the arrangement of assessments
Care and Protection ReformsProtecting children and young people in need of care and protection • Drug use provisions in care and protection orders and drug testing standards • Stability for children and young people – rebuttable presumption and stability proposals in care plans • DVPO protection orders for children and young people exposed to domestic violence • Cultural care plans • Enhanced participation in annual reports
Care and Protection Reforms Improving supports for children and young people in out of home care • New principle • Authorisation framework for out of home care • Out of Home Care Standards • Expanded suitable entity test and duty of disclosure • Access to personal history information • Leaving out of home care plans • Re-enactment of reporting to public advocate – abuse in care
Care and Protection Reforms Safeguarding children and young people in need of therapeutic protection • New criteria • Emergency therapeutic protection • Regular reviews and upper limit 6 months • Revised search and seizure • Therapeutic Protection Standards
Youth Justice ReformsProtecting human rights in youth detention (DHCS) • Human Rights Audit of Quamby • Minimum living conditions • Improved oversight arrangements • 18 – under 21 years old remaining in youth detention place • Segregation directions including safe-room • Mandatory reporting of significant threats • Caring for young children • Searches of visitors • Behaviour management framework
Childcare Services ReformsImproving accountability and transparency • Standards to replace licence conditions • Removal of Approval In Principle requirements • Reporting non-compliance to parents • Assessment and publication of compliance with standards
Employment ReformsEnhancing safe employment opportunities • Light work • Work experience programs • Declaration of high risk industries • Employment standards
General changes across the ActImproving collaborative responses (DHCS) • Information sharing • Care teams • Information standards and Chief Executive instructions • Corresponding interstate laws • Extending family group conferencing • Research • Suitability Test
Commencement • Objectives and Principles 9 September 2008 • Youth Justice Detention 9 September 2008 • Care and Protection 27 October 2008 • Children Services 27 February 2009 • Youth Justice Community 27 February 2009
Children and Young People Bill 2008 Sentencing Reforms
HISTORY OF SENTENCING LAWS IN THE ACT • Up until 1986, the criminal justice system for juveniles was provided for by the Child Welfare Ordinance 1957 (Cth). Under the Ordinance the courts treated young offenders in the same way that they treated neglected or “uncontrollable” children. • Two of the most common orders made was that a child become a ward of the state, or be committed to an institution. This was problematic because of the ills associated with institutionalisation, particularly when it was not used as a measure of last resort. • In practice, children were committed to institutions because courts saw it as an expedient solution, even though it was not necessarily always in the interests of the child’s welfare. • In 1986 the Childrens Services Act took effect. That Act created a much clearer distinction between how young offenders and neglected children were to be dealt with, and removed the focus on various forms of institutionalisation as a preferred option. • The Act instead emphasised the “best interests” principle.
HISTORY OF SENTENCING LAWS IN THE ACT • Children and Young People Act 1999 (present day) • In 1999 the Children and Young People Act was enacted. • The “best interest principle” continues to be paramount. In a criminal justice context, the “best interest principle” is fleshed out by the following principles contained in section 94 of the Act: (a) if a young person does anything that is contrary to law, he or she should be encouraged to accept responsibility for the behaviour and be held accountable; (b) regard must be had to the best interests of the young person or young offender; (c) the young person should be dealt with in a way that acknowledges his or her needs and that will provide the opportunity to develop in socially responsible ways; (d) a young person may only be detained in custody for an offence (whether on arrest, in remand or under sentence) as a last resort; (e) young offenders should be dealt with in the criminal law system in a manner consistent with their age and maturity and have the same rights and protection before the law as would adults in similar circumstances; (f) on and after conviction, it is a high priority to give a young offender the opportunity to re-enter the community; (g) a balanced approach must be taken between the needs of the young offender, the rights of any victim of the action that constituted the young offender’s offence and the interests of the community.
CURRENT ISSUES IN ACT SENTENCING LAW • “Best Interest Principle” – What does it mean? • The Courts have had trouble in determining what exactly is in a child’s best interests in any case. The Court’s have had trouble applying the best interests principles and held them to be contradictory. • In the case of GDP v R (1991) 52 A Crim R the NSW Supreme considered NSW provisions similar to section 94 and commented that: “some of these guidelines consist of sentiments and admonitions which are so general as to be of little assistance in the sentencing of young offenders.” • In practice, because the concept of best interest is not always clear, judges have resorted to the common law in sentencing young offenders.
CURRENT ISSUES IN ACT SENTENCING LAW • Common law on sentencing • The primary consideration at common law is that rehabilitation of the young offenders is always the principal consideration. • In In R v Voss  NSWCCA 182 the NSW Court of Criminal Appeal cited with approval common law principles laid down in previous cases such as Wilcox (NSWS, unreported 15 August 1979), such as: . . . in the case of a youthful offender… considerations of punishment and general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation. • In GDP v R the NSW Supreme Court cited with approval the comments of of the court in Smith v R when the court held that: In the case of a youthful offender there can rarely be any conflict between his interests and the public’s. The public have no greater interest than that he should become a good citizen.
CURRENT ISSUES IN ACT SENTENCING LAW • Common law on sentencing • In Victoria, R v Mills  4 VR 235 is a leading case that also places rehabilitation as the priority principle when sentencing a young offender. In that case Batt JA noted that when sentencing young people: (i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises. (ii) In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender).
CURRENT ISSUES IN ACT SENTENCING LAW Common law on sentencing • The weight attached to rehabilitation is to be diminished when the release of an offender would present a clear threat to the community, or there is a strong need to deter the offender from further serious wrongdoing because other rehabilitative attempts have proven unsuccessful. However, notions of vengeance and retribution should never play a part of sentencing a young offender. (see: R v AS  NSWCCA 309). • The ACT Supreme Court has also advocated the view taken by NSW and Victorian courts. In Thorn v Laidlaw  ACTCA 49 the Court of Appeal noted: The role of rehabilitation is particularly relevant in relation to young offenders, a point recently reiterated by the New South Wales Court of Appeal in R v AEM Snr; KEM; MM  NSWCCA 58. Beazley JA, Wood CJ at CL and Sully J observed at  that: It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation.
CURRENT ISSUES IN ACT SENTENCING LAW • Human Rights Principles: • The International Covenant on Civil and Political Rights (ICCPR) provides in Article 14(4), which broadly corresponds to section 22(3) of the Human Rights Act 1994, that: “In the case of juvenile persons, the procedure shall be such will take account of their age, and the desirability of promoting their rehabilitation.”
Human Rights Principles: • Article 17 of the Beijing Rules sums up the key policy considerations for criminal justice matters. 17.1 The disposition of the competent authority shall be guided by the following principles: ( a ) The reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of the society; ( b ) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum; ( c ) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response; ( d ) The well-being of the juvenile shall be the guiding factor in the consideration of her or his case. 17.2 Capital punishment shall not be imposed for any crime committed by juveniles.
CURRENT ISSUES IN ACT SENTENCING LAW • Proposed Reforms • Currently three “discrete” criminal justice systems: • Adult system; • juveniles in the Children's Court; • and juveniles charged “as adults” in the Supreme Court; • The Bill would create two criminal justice systems: • Adult system • Common Juvenile system across both Children and Supreme Court.
CURRENT ISSUES IN ACT SENTENCING LAW • Proposed Reforms - Sentencing Legislation: • Previously three separate sets of sentencing and sentence administration laws applied in the criminal justice system: • Crimes (Sentencing) Act 2005; • Crimes (Sentence Administration) Act 2005; • Children and Young People Act 1999. • The different laws provided for different sentencing methodologies, different sentencing options, and different procedures for administering sentences. • This created confusion amongst courts and legal practitioners. • It is proposed that the only pieces of legislation dealing with sentencing and sentence administration be the Crimes (Sentencing) Act 2005 and the Crime (Sentence Administration) Act 2005. The Bill will amend those Acts to provide how juveniles are to be dealt with differently.
Proposed Reforms - Sentencing Legislation: • All of the sentencing options available to the court for adults will also be available for juvenile offenders (e.g. non-conviction orders, fines, good behaviour orders, reparation orders and imprisonment). • A few extra sentencing options will also be created for juvenile offenders (accommodation orders and education orders). • One of the essential differences will be in the considerations the court must weigh up when determining what will be an appropriate sentence.
Proposed Reforms - Sentencing Legislation: • Currently section 7 of the Crimes (Sentencing) Act 2005 provides that: A court may impose a sentence on an offender for 1 or more of the following purposes: (a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate; (b) to prevent crime by deterring the offender and other people from committing the same or similar offences; (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions; (f) to denounce the conduct of the offender; (g) to recognise the harm done to the victim of the crime and the community.
Proposed Reforms - Sentencing Legislation: • The Bill will provide that section 7 applies to young offenders. However, consistent with the common law approach and human rights principles, the Bill will provide that greater emphasis can be placed on rehabilitation. • This will end the legal fiction that courts are giving effect to a number of competing “best interests” principles, and give statutory effect to the common law and human rights approach to sentencing. • There will not be a requirement that the court give greater emphasis to rehabilitation as it is not the Bill’s intention to extinguish the common law exceptions regarding when other considerations (such as community safety and personal deterrence) can be given greater weight in the case of offenders who pose a significant threat to community safety, or have not responded to previous rehabilitative sentences by the courts. • This approach to sentencing will be the same in both the Children's Court and the Supreme Court.
COURT PROCEDURE • At present, court procedure in the Children’s Court and Supreme Court are different. Children’s Court proceedings are conducted in a manner which take into account the maturity and level of a young person. • When juvenile matters are heard in the Supreme Court, the standard rules of court and the formality of proceedings is observed. • Clause 14.2 of the Beijing Rules states that: The proceedings shall be conducive to the best interests of the juvenile and shall be conducted in an atmosphere of understanding, which shall allow the juvenile to participate therein and to express herself or himself freely.
COURT PROCEDURE • The Bill will require extra measures be taken to ensure that children and young people have a meaningful opportunity to participate in proceedings, and that the meaning of what is happening during the course of a proceeding is explained to the defendant in a manner that they understand. • In T and V v the United Kingdom (2000) 30 EHRR 121 the European Court of Human Rights discussed some of the procedural modifications that should be applied in case involving children and young people. They include: • Showing the child the court room in advance of the proceedings; • Explain trial procedure to the child in language they understand • Formal court room attire such as wigs and robes should be avoided; • Where necessary, hearing times should be shortened so as not to excessively tire defendants. • The Bill will enable the Courts Rule Making Committee to give effect to these and other procedural modifications. The rules will apply in both the Childrens Court and the Supreme Court.
CRIMINAL INVESTIGATIVE PROCEDURE • Currently investigative powers for Police are spread over a number of Acts (e.g. circumstances when police can arrest a child or young person, obligation to inform parents of arrest, procedural safeguards that must be observed when questioning children or young people). • The Bill consolidates all investigative provisions in the Crimes Act 1900 to make them more accessible for police. • The nature and the substance of investigative provisions relating to children will not change.