Effectiveness of the System (HSC SSCE Legal Studies): Revision Notes

Effectiveness of the System

Introduction to effectiveness

The criminal justice system's approach to young offenders has long been debated. Historically, adults have often viewed young people negatively, but high youth offending rates may also indicate systemic failures in how the justice system supports vulnerable young people.

Many children who offend come from backgrounds involving neglect, mistreatment, or poor parenting. These circumstances, often beyond their control, affect their ability to make appropriate decisions. The law recognises this through graduated criminal responsibility based on age, culminating in full adult responsibility.

The effectiveness of custodial sentences

Declining detention rates

Australian Institute of Criminology statistics reveal encouraging trends. Since 1981, the rate of detention for young offenders has fallen by more than 50%. In 2007, only 10.3% of 6488 young offenders appearing before the NSW Children's Court received a control order. On average, between 900 and 1000 young people are held in custody daily across Australia.

Research evidence on deterrence

The Australian Institute of Criminology's 2009 study, The Specific Deterrent Effect of Custodial Penalties on Juvenile Offenders, provides crucial evidence about custodial sentences. The research found no difference in reoffending rates between young offenders given custodial sentences and those given alternative sentences.

Implications for the justice system

This research challenges the justice model approach, which emphasises punishment, and supports the welfare model, which prioritises rehabilitation and addressing the underlying causes of offending behaviour.

Diversion programmes and alternatives

Success of the Young Offenders Act

The Young Offenders Act has proven particularly effective in diverting young people away from custodial sentences. This legislation provides alternatives that focus on rehabilitation rather than punishment.

Youth justice conferencing represents a key alternative to traditional court proceedings. The Children's Court can refer young offenders to these conferences, with approximately 50% of all conferences resulting from court referrals.

How conferencing works

Youth justice conferencing operates as an alternative throughout the criminal justice process. It involves:

• The young offender taking responsibility for their actions
• Victims having a voice in the process
• Families and support networks participating
• Agreement on an outcome plan focusing on rehabilitation and restitution

While some critics suggest that matters unnecessarily reach the Children's Court before being diverted to conferencing, the programme still provides a crucial alternative to incarceration at various stages of the justice process.

Challenges: bail law reforms

The 2007 Bail Act amendments

Despite the success of diversion programmes, other aspects of the criminal justice system continue to prioritise the justice model over the welfare model, sometimes with unintended negative consequences for young offenders.

In December 2007, amendments to the Bail Act 1978 (NSW) were enacted to toughen bail conditions. These changes, combined with increased police activity, had significant impacts on young people.

Impact on young offenders

The NSW Bureau of Crime Statistics and Research report Recent Trends in Legal Proceedings for Breach of Bail, Juvenile Remand and Crime revealed concerning findings about the amendments' effects:

Statistical impacts:

• 32% increase in juveniles on remand between 2007 and 2008
• Average remand period increased from approximately 10 days to 35 days
• Cost of keeping juveniles on remand rose by 29% to $47.2 million
• No evidence that increased juvenile remand contributed to falling property crime rates

Nature of bail breaches

Critically, the report found that most young people were not being imprisoned for committing new offences:

• Only 34% of young people imprisoned for breaching bail had committed a further offence
• 66% had been detained for breaching other bail conditions, most commonly failing to comply with curfews

Consequences of the amendments

Under the amended Bail Act, most adults and children can make only one application for bail. This limitation has serious consequences:

• Extended periods in custody disrupt family relationships
• Education is interrupted
• Employment prospects are damaged
• Young people are incarcerated for technical breaches rather than criminal behaviour

The Law Society of NSW president called for repealing the amendments as they apply to children, arguing that increasing incarceration from ten days to five weeks achieves nothing positive while unnecessarily expanding the remand population.

Balancing justice and welfare approaches

The need for careful balance

The criminal justice system must carefully balance competing approaches to young offenders. While community safety and accountability matter, research consistently demonstrates that rehabilitation should remain the primary focus when dealing with young people.

Australia's obligations

Multiple sources mandate prioritising rehabilitation:

• International obligations – Australia's commitments under international law regarding children's rights
• Children's sentencing legislation – specifically the Children's (Criminal Proceedings) Act 1987 (NSW)
• Research evidence – continuous studies showing rehabilitation's superiority over punishment

Current tensions

The contrast between successful diversion programmes under the Young Offenders Act and the negative impacts of bail law reforms illustrates the ongoing tension between welfare and justice models. While some parts of the system effectively prioritise rehabilitation, others continue to apply punitive approaches more suitable for adults.

Key Takeaways