Holiday Work Analysis
HSC Legal Studies Holiday Work
Analyses
a. ‘Briefing Paper on Juvenile Justice: Some Recent Developments (1999)’
The law treats young people differently to adults as it aims to prevent children from being exploited or from facing the consequences of making uninformed decisions. The criminal justice system recognizes young people can be less responsible than adults for their offences and this is most evident in the way the law approaches the age of criminal responsibility, known as doli incapax. In 1989, the United Nations established a treaty on children’s rights known as the Convention on the Rights of the child (1989). It included an article 41 which encouraged the establishment of ‘a minimum age below which children shall be presumed …show more content…
not to have the capacity to infringe the penal law’.
This article criticizes the use of doli incapax and puts the abolition or modification of it on the agenda. It claims many legal practitioners such as the President of the Children’s Court of Queensland and the Senior Children’s Magistrate of the NSW Children’s Court recommend the that doli incapax be abolished or at the very least lowered to children under 12. It claims that many 12 and 13 year old children are a lot more sophisticated these days than they were 30 years ago. It goes on to argue that children are already protected as they are now dealt with in specialized Children’s Courts and protected by special legislation. In this article the effectiveness of the minimum age of responsibility is once again criticized for not meeting the need of society to punish offenders, it instead has focused excessively on protecting the rights of juveniles and thus lacks balance.
b. Prevention the only hope for young offenders, because cure is failing (SMH, 2012)
The Children’s (Criminal Proceedings) Act 1987 (NSW) contains principles which relate to the sentencing process of juveniles. It proclaims that children should be assisted with reintegration into the community and that for most children’s offences; penalties will be significantly less severe than ordinary law and will be considered with the child’s rehabilitation in mind. A control order is the most severe penalty available in children’s criminal proceedings and is a last resort as it is similar to the adult imprisonment, except that young offender is held a juvenile justice centre rather than an adult correctional centre.
The Herald has published an investigation into juvenile justice and how these children are dealt with.
This article somewhat criticizes the juvenile justice system as it proclaims the beginning of some long overdue reform in NSW. It claims the Governor, Marie Bashir, will launch a campaign to reduce the staggeringly high rate of young indigenous people in detention centres. Furthermore, it states that in NSW, the young indigenous people make up more than half of the detention population yet just 2.2% of the general population. According to the article, an aboriginal youth facing the court system is 28 times more likely to be placed in juvenile detention than their non-indigenous counterparts. This system is in dire straits and is in need of a new approach involving early intervention, prevention and diversion with incarceration as a last resort that has all become known as ‘justice reinvestment’. In NSW the average annual cost of incarcerating a juvenile is $237,980 an the statistics show that this approach has failed as more than 30% of adult prisoners were first incarcerated as juveniles. Overall, this article criticizes the juvenile justice system as it neglects the statistics and continues on the path of a ‘tough on crime’ system that clearly isn’t working. It aims to initiate reform in the juvenile justice system that would move to focusing on prevention and diversionary programs rather than …show more content…
punishing.
c. Real justice is not about custody (SMH, 2009)
The Children’s (Criminal Proceedings) Act 1987 (NSW) contains principles which relate to the sentencing process of juveniles. It proclaims that children should be assisted with reintegration into the community and that for most children’s offences; penalties will be significantly less severe than ordinary law and will be considered with the child’s rehabilitation in mind. A control order is the most severe penalty available in children’s criminal proceedings and is a last resort as it is similar to the adult imprisonment, except that young offender is held a juvenile justice centre rather than an adult correctional centre.
This article claims that youth detention centres are at maximum capacity as incarceration rates are at a four-year high. In NSW overcrowding is so common that teenagers reportedly sleep in detention centre visiting rooms. Indigenous young people account for more than 56% of juvenile detainees in NSW. Putting young offenders is not only expensive at $150,000 per child per year but ineffective as over half of those released reoffend. Nearly one in two juveniles in custody reports some form of serious abuse, including violence and neglect in which incarceration is not the appropriate response to their underlying problems. The alternative is to work with young people as early as possible through ‘diversionary programs’ and address the root causes so they do not enter, or re-enter, the juvenile justice system. Overall, this article criticizes the juvenile justice system as it continues on the path of a ‘tough on crime’ system instead of focusing on prevention and diversionary programs that have been proven to work and are more cost-effective.
d. Showdown with victims fails to stop youth crime (SMH, 2012)
The Young Offenders Act 1997 (NSW) also allows for youth justice conferences, which can be used when a young offender admits to an offence and consents to having it dealt with by a conference of different parties. The several parties involved such as the offender and their family, the victim and several officials come together in a conference to decide on a reasonable and amicable punishment. Conferences hold the offender accountable, but empower families and victims in decision about a child’s offence and, where suitable, make reparations to the victim
This article however criticizes the youth conferencing program as it has not been found any more effective than the NSW Children’s Court in reducing juvenile reoffending.
A new study by the NSW Bureau of Crime Statistics and Research suggests that while the conferences are popular with victims and the community, any assumptions that it helps reduce the rate of reoffending was unfounded. About 64% of the 918 young people referred to conferencing and 65% of the 918 dealt with by the Children’s Court were reconvicted of further offences within 24 months. The director of the Bureau says the problem is that these conferences don’t deal with the underlying problems and that the answer lies in well-tested programs known as Family Integrated Transitions, which includes treatment of 4-6 months which teachers adults better parenting and communication skills, and teaches young offenders conflict negotiation skills. Furthermore, the program involves liaising with the child’s school to improve school performance and behaviour as well as encouraging social activities such as sport. This article criticizes youth justice conferencing as it does not show any superior results and further condemns it as it does not actually deal with ay of the underlying problems causing these offences to occur thus lacking effectiveness in regards to the needs of
society.
e. Bail for youth must be easier, review finds (SMH, 2012)
Under the Bail Act 1978 principles relating to the conditions under which bail is granted are listed here. According to the Bail Act there are restrictions against granting bail for certain offences, such as drug trafficking or serious domestic violence. This is known as the ‘presumption against bail’, and it becomes up to the accused to prove why their bail should not be refused. Section 22A was introduced to stop people from making multiple bail applications which were without merit and which tended to clog up the courts.
The article ‘Bail for youth must be easier, review finds’ (SMH, 2012) highlights the ineffectiveness of the presumption against bail for certain offences. The review found that presumption against bail had led to a drastic increase in the number of people – particularly children – in remand, even if they did not serve a sentence later. The article recommended that Section 22A is reformed to not be enforced on people under the age of 18 and those under 21 at the time of application. The article went on to recommend that the law be more lenient on adults too, allowing them two applications before being prevented from making further applications. The article commended the recommendations and encouraged the need for the government to reform the Bail Act.
f. Restorative justice may not work for all young offenders (The Conservation, 2012)
g. Seen and heard: Young People and the legal process (1997)
Under the UNCROC, Article 37(b) an arrest should be a ‘last resort’ on children and young people as it can result in a very negative experience for them. This arose controversial issues with current legislation (such as the rights of children and young people when arrested and questioned) in Australia.
The Seen and Heard: Young people and the legal process report released by the NSW Law Reform Commission in 1997 was a joint enquiry of the Human Rights and Equal Opportunity Commission and the Australia Law Reform Commission which examined the relationship of children and young people and legal processes. The report examined how policing could become more consistent with the UNCROC provisions and recommended that national standards should be implemented via legislation or policy in certain areas of concern. One area of concern includes the rights of children and young people when arrested and questioned. The report also found that 78% of the 843 children and young people surveyed said that police rarely treated young people with sufficient respect. The report recommended that for children at risk, welfare and health services may be the more appropriate agencies to deal with the situation. However, this is not to deny that arrest is appropriate when it is necessary for a police officer to protect the community. This article criticises the Juvenile Justice System as it highlights the scarcity of respect between young offenders and legal processes. It also denounces the arresting of children and young people, in hope that our legal system will be ratified to meet the UNCROC provisions.
Analyses
a. ‘Briefing Paper on Juvenile Justice: Some Recent Developments (1999)’
The law treats young people differently to adults as it aims to prevent children from being exploited or from facing the consequences of making uninformed decisions. The criminal justice system recognizes young people can be less responsible than adults for their offences and this is most evident in the way the law approaches the age of criminal responsibility, known as doli incapax. In 1989, the United Nations established a treaty on children’s rights known as the Convention on the Rights of the child (1989). It included an article 41 which encouraged the establishment of ‘a minimum age below which children shall be presumed …show more content…
not to have the capacity to infringe the penal law’.
This article criticizes the use of doli incapax and puts the abolition or modification of it on the agenda. It claims many legal practitioners such as the President of the Children’s Court of Queensland and the Senior Children’s Magistrate of the NSW Children’s Court recommend the that doli incapax be abolished or at the very least lowered to children under 12. It claims that many 12 and 13 year old children are a lot more sophisticated these days than they were 30 years ago. It goes on to argue that children are already protected as they are now dealt with in specialized Children’s Courts and protected by special legislation. In this article the effectiveness of the minimum age of responsibility is once again criticized for not meeting the need of society to punish offenders, it instead has focused excessively on protecting the rights of juveniles and thus lacks balance.
b. Prevention the only hope for young offenders, because cure is failing (SMH, 2012)
The Children’s (Criminal Proceedings) Act 1987 (NSW) contains principles which relate to the sentencing process of juveniles. It proclaims that children should be assisted with reintegration into the community and that for most children’s offences; penalties will be significantly less severe than ordinary law and will be considered with the child’s rehabilitation in mind. A control order is the most severe penalty available in children’s criminal proceedings and is a last resort as it is similar to the adult imprisonment, except that young offender is held a juvenile justice centre rather than an adult correctional centre.
The Herald has published an investigation into juvenile justice and how these children are dealt with.
This article somewhat criticizes the juvenile justice system as it proclaims the beginning of some long overdue reform in NSW. It claims the Governor, Marie Bashir, will launch a campaign to reduce the staggeringly high rate of young indigenous people in detention centres. Furthermore, it states that in NSW, the young indigenous people make up more than half of the detention population yet just 2.2% of the general population. According to the article, an aboriginal youth facing the court system is 28 times more likely to be placed in juvenile detention than their non-indigenous counterparts. This system is in dire straits and is in need of a new approach involving early intervention, prevention and diversion with incarceration as a last resort that has all become known as ‘justice reinvestment’. In NSW the average annual cost of incarcerating a juvenile is $237,980 an the statistics show that this approach has failed as more than 30% of adult prisoners were first incarcerated as juveniles. Overall, this article criticizes the juvenile justice system as it neglects the statistics and continues on the path of a ‘tough on crime’ system that clearly isn’t working. It aims to initiate reform in the juvenile justice system that would move to focusing on prevention and diversionary programs rather than …show more content…
punishing.
c. Real justice is not about custody (SMH, 2009)
The Children’s (Criminal Proceedings) Act 1987 (NSW) contains principles which relate to the sentencing process of juveniles. It proclaims that children should be assisted with reintegration into the community and that for most children’s offences; penalties will be significantly less severe than ordinary law and will be considered with the child’s rehabilitation in mind. A control order is the most severe penalty available in children’s criminal proceedings and is a last resort as it is similar to the adult imprisonment, except that young offender is held a juvenile justice centre rather than an adult correctional centre.
This article claims that youth detention centres are at maximum capacity as incarceration rates are at a four-year high. In NSW overcrowding is so common that teenagers reportedly sleep in detention centre visiting rooms. Indigenous young people account for more than 56% of juvenile detainees in NSW. Putting young offenders is not only expensive at $150,000 per child per year but ineffective as over half of those released reoffend. Nearly one in two juveniles in custody reports some form of serious abuse, including violence and neglect in which incarceration is not the appropriate response to their underlying problems. The alternative is to work with young people as early as possible through ‘diversionary programs’ and address the root causes so they do not enter, or re-enter, the juvenile justice system. Overall, this article criticizes the juvenile justice system as it continues on the path of a ‘tough on crime’ system instead of focusing on prevention and diversionary programs that have been proven to work and are more cost-effective.
d. Showdown with victims fails to stop youth crime (SMH, 2012)
The Young Offenders Act 1997 (NSW) also allows for youth justice conferences, which can be used when a young offender admits to an offence and consents to having it dealt with by a conference of different parties. The several parties involved such as the offender and their family, the victim and several officials come together in a conference to decide on a reasonable and amicable punishment. Conferences hold the offender accountable, but empower families and victims in decision about a child’s offence and, where suitable, make reparations to the victim
This article however criticizes the youth conferencing program as it has not been found any more effective than the NSW Children’s Court in reducing juvenile reoffending.
A new study by the NSW Bureau of Crime Statistics and Research suggests that while the conferences are popular with victims and the community, any assumptions that it helps reduce the rate of reoffending was unfounded. About 64% of the 918 young people referred to conferencing and 65% of the 918 dealt with by the Children’s Court were reconvicted of further offences within 24 months. The director of the Bureau says the problem is that these conferences don’t deal with the underlying problems and that the answer lies in well-tested programs known as Family Integrated Transitions, which includes treatment of 4-6 months which teachers adults better parenting and communication skills, and teaches young offenders conflict negotiation skills. Furthermore, the program involves liaising with the child’s school to improve school performance and behaviour as well as encouraging social activities such as sport. This article criticizes youth justice conferencing as it does not show any superior results and further condemns it as it does not actually deal with ay of the underlying problems causing these offences to occur thus lacking effectiveness in regards to the needs of
society.
e. Bail for youth must be easier, review finds (SMH, 2012)
Under the Bail Act 1978 principles relating to the conditions under which bail is granted are listed here. According to the Bail Act there are restrictions against granting bail for certain offences, such as drug trafficking or serious domestic violence. This is known as the ‘presumption against bail’, and it becomes up to the accused to prove why their bail should not be refused. Section 22A was introduced to stop people from making multiple bail applications which were without merit and which tended to clog up the courts.
The article ‘Bail for youth must be easier, review finds’ (SMH, 2012) highlights the ineffectiveness of the presumption against bail for certain offences. The review found that presumption against bail had led to a drastic increase in the number of people – particularly children – in remand, even if they did not serve a sentence later. The article recommended that Section 22A is reformed to not be enforced on people under the age of 18 and those under 21 at the time of application. The article went on to recommend that the law be more lenient on adults too, allowing them two applications before being prevented from making further applications. The article commended the recommendations and encouraged the need for the government to reform the Bail Act.
f. Restorative justice may not work for all young offenders (The Conservation, 2012)
g. Seen and heard: Young People and the legal process (1997)
Under the UNCROC, Article 37(b) an arrest should be a ‘last resort’ on children and young people as it can result in a very negative experience for them. This arose controversial issues with current legislation (such as the rights of children and young people when arrested and questioned) in Australia.
The Seen and Heard: Young people and the legal process report released by the NSW Law Reform Commission in 1997 was a joint enquiry of the Human Rights and Equal Opportunity Commission and the Australia Law Reform Commission which examined the relationship of children and young people and legal processes. The report examined how policing could become more consistent with the UNCROC provisions and recommended that national standards should be implemented via legislation or policy in certain areas of concern. One area of concern includes the rights of children and young people when arrested and questioned. The report also found that 78% of the 843 children and young people surveyed said that police rarely treated young people with sufficient respect. The report recommended that for children at risk, welfare and health services may be the more appropriate agencies to deal with the situation. However, this is not to deny that arrest is appropriate when it is necessary for a police officer to protect the community. This article criticises the Juvenile Justice System as it highlights the scarcity of respect between young offenders and legal processes. It also denounces the arresting of children and young people, in hope that our legal system will be ratified to meet the UNCROC provisions.