Effectiveness of Responses (HSC SSCE Legal Studies): Revision Notes
Effectiveness of Responses
Introduction to evaluating justice for children and young people
As young people develop through adolescence into adulthood, they naturally take more risks. However, they also face potential exploitation and abuse from some adults in society. This means children and young people can be both at risk of harm and at risk of harming others.
This dual nature of young people - as both vulnerable individuals requiring protection and as developing citizens who may make harmful choices - is fundamental to understanding how justice systems must respond to them. Any effective response must balance protection with accountability.
The effectiveness of legislation and mechanisms designed to ensure justice for children and young people must be evaluated in this context. This evaluation considers whether current laws, processes and institutions adequately protect young people's rights while holding them accountable when necessary.
Children and young people and the criminal justice system
Police interactions and the Seen and Heard inquiry
When children and young people encounter the criminal justice system, their first contact is typically with police officers during arrest or questioning. This initial experience can significantly shape their attitudes toward authority and the wider community.
The Seen and Heard: Priority for children in the legal process inquiry was conducted jointly by the Human Rights and Equal Opportunity Commission and the Australian Law Reform Commission in . This landmark inquiry examined the relationship between children, young people and the legal process.
Key finding: Of children and young people surveyed, reported that police rarely treated young people with sufficient respect. This statistic reveals a significant disconnect between police interactions and young people's experiences.
The inquiry revealed that young people are frequently targeted for police intervention for reasons such as:
- Lacking 'respect'
- Being 'rowdy'
- Participating in 'rave culture'
- Simply being young and present in public spaces
The Seen and Heard inquiry examined how policing could align better with CROC (Convention on the Rights of the Child) provisions. It recommended implementing national standards through legislation or policy in several areas of concern.
Arrest and police interview
The problem with arrest as investigation: In some jurisdictions, police allegedly rely heavily on arrest to gather evidence or further interrogate suspects. This means arrest is used as an investigative method rather than as a response to established wrongdoing. This practice particularly affects Indigenous youth.
CROC Article 37(b) standard: This article states that arrest should be a 'last resort', not routine practice. Arrest can be an extremely negative experience for children and young people, potentially causing trauma and alienation from the justice system.
Alternative approaches: The Seen and Heard report recommended that for children at risk, welfare and health services may be more appropriate agencies to address the situation. This doesn't deny that arrest remains appropriate when necessary to protect the community.
Legal representation rights: All suspects have the right to contact a lawyer and have them present during questioning, provided this doesn't interfere with the police investigation. Young people under can contact the Legal Aid Youth Hotline if arrested and needing legal advice.
Barriers to exercising rights: Many young people don't exercise their right to legal representation because they:
- Are unaware of their rights
- Face language difficulties
- Experience cultural differences
- Don't understand the process due to their age
These barriers mean that even when protections exist in law, young people may not benefit from them in practice.
Recommendation: The Australian Law Reform Commission and others recommended greater police efforts to inform accused persons of their rights in terms they can understand and act upon.
Sentencing of young offenders
The sentencing of juveniles was another major concern identified by the Seen and Heard report. Young offenders have the best chance of any offender group for successful rehabilitation and reintegration into society.
Sentencing principles: Sentences should take into account:
- The age of the offender
- The circumstances under which the offence was committed
Research evidence: Studies indicate that detention and other harsh sentencing options are generally ineffective as deterrents to reoffending. Despite this evidence, harsh sentences continue to be imposed in some cases.
This represents a significant gap between research findings and actual practice in the justice system.
NSW legislative framework: In New South Wales, courts follow guidelines under the Children (Criminal Proceedings) Act 1987 (NSW), which provides special consideration to juvenile offenders.
Areas for improvement: The Seen and Heard report identified that magistrates often fail to sufficiently account for social factors when determining sentences for children, including:
- Homelessness
- Family circumstances
- Educational needs
- Other social determinants
Recommendation: Sentencing options should take into account the special health and other requirements of children and young people, addressing underlying causes rather than just punishing behavior.
Youth conferencing
Youth conferencing represents an alternative approach to traditional court processes for young offenders. Under the Young Offenders Act 1997 (NSW), conferencing can be used not only for summary matters but also for some indictable offences including:
- Robbery
- Aggravated break, enter and steal
Criticism 1: Limited application
A significant criticism of the Young Offenders Act is that youth conferencing isn't being used for a sufficiently wide range of offences. This means some young offenders miss out on the benefits conferencing offers.
The Shopfront Youth Legal Centre, in its submission to the NSW Law Reform Commission, argued that:
- Youth justice conferencing is suitable for a wide range of offences, even very serious ones
- It's not a 'soft option'
- Conferencing works best for relatively serious offences because young offenders must confront the consequences of their actions and the harm caused to victims
- In most cases, conferencing is more effective than court for achieving accountability and understanding
Criticism 2: Lack of supporting measures
More recent findings suggest conferencing needs additional rehabilitative support to be effective.
Dr Don Weatherburn's research (March 2012): The Director of the NSW Bureau of Crime Statistics and Research found that:
- The conference regime under the NSW Young Offenders Act (1997) is currently no more effective than the NSW Children's Court in reducing juvenile reoffending among persons eligible for a conference
- Victorian conferencing produced lower reoffending figures, possibly because it considers more serious matters and isn't easily dismissed as a soft option
Underlying causes not addressed: Dr Weatherburn speculated that Youth Justice Conferences don't address underlying causes of juvenile offending, such as:
- Drug and alcohol use
- Parental neglect and abuse
- Poor school performance
- Boredom and unemployment
NSW Commission for Children and Young People concerns (December 2011)
In its submission to the Review of the Young Offenders Act 1997 and the Children (Criminal Proceedings) Act 1987, the Commission identified three key problems:
1. Brain development research: Recent research has revealed greater understanding of adolescent brain development continuing until age . This suggests our understanding of criminal responsibility for children and young people may need reassessment.
2. Justice vs welfare model conflict: The legislation attempts to combine 'justice' and 'welfare' models of juvenile justice, creating a complex and sometimes contradictory system of:
- Community-based sanctions and controls
- Formal court processes and detention
This may have led to "net widening" - police warn, caution or refer to conferencing children who might otherwise have been dealt with informally.
3. Insufficient evidence for restorative justice: The principles of restorative justice underpinning youth justice conferencing are contentious. There's insufficient evidence for the effectiveness of youth justice conferencing in its current form in reducing recidivism. This supports Dr Weatherburn's findings.
International issues affecting children and young people
Children worldwide face exploitation and abuse where national laws fail to provide adequate protection.
Scale of the problem:
- Approximately million child laborers work worldwide
- In , an estimated to children and young people were involved in armed conflict
- Up to of these child soldiers were believed to be in Africa
These staggering figures demonstrate the global failure to protect children's rights in many regions.
Contexts of vulnerability: In countries affected by war and famine, family structures have often been destroyed. Children lack the protection normally provided within families, leaving them vulnerable to:
- Forced labor
- Military recruitment
- Sexual exploitation
- Trafficking
Australian context: Even in Australia, children have been held in immigration detention centers despite breaking no laws, due to previous federal government policies on asylum seekers.
Capital punishment: In some countries, minors are still executed for crimes they have committed, despite international human rights standards prohibiting this practice.
Australia's obligations under the Convention on the Rights of the Child
The Committee on the Rights of the Child examines reports from parties to CROC regarding their compliance with treaty obligations. The Committee can report and publish adverse findings on countries failing to enforce children's rights. However, states can choose to ignore or comply with such findings.
Australia's overall position
Australia has been a strong CROC supporter from the outset, with extensive federal and state legislation designed to protect and promote children's welfare. However, areas for improvement remain.
Joint Standing Committee on Treaties
This committee was established to investigate and report on:
- Issues arising from treaties
- Proposed treaty actions
- Questions relating to treaties referred by parliament or ministers
- Other matters referred by the Minister for Foreign Affairs
Example: Report 17 (1998) examined:
- Domestic ramifications of CROC ratification
- Federal, state and territory progress in complying with CROC
- Adequacy of programs and services for children's health, education and welfare
- Adequacy of legislation in addressing children's needs
- Further action required
Identified gap: Some argue that developing a process for scrutinizing draft legislation for compliance with treaty principles should be a high priority.
Deficiencies in Australian law regarding CROC
1. Corporal punishment defense
The defense of 'lawful correction' remains available in all states and territories for parents using corporal punishment on children, except in NSW where it has been limited by legislation prohibiting:
- Force to the head or neck
- Force causing harm 'likely to last for more than a short period'
Corporal punishment refers to the physical punishment of people, especially children, by hitting them.
2. Public space restrictions
Laws exist allowing police to deny children and young people use of public space by asking them to leave or removing them. For example, Part , Division of the Children (Protection and Parental Responsibility) Act 1997 (NSW).
Public space refers to areas set aside where community members can associate and assemble.
3. Junior rates of pay
Children and young people are paid less than adults for performing the same work through junior rates of pay. This raises questions about whether this practice aligns with principles of non-discrimination in CROC.
4. Age of criminal responsibility
It's argued that the criminal age of responsibility of years is too low, particularly given recent neuroscience research on adolescent brain development.
Conclusion
The rights of children have progressed significantly. Australian legislation has established processes and institutions recognizing and protecting the important role children and young people play in society. There's widespread acceptance that these individuals have special needs due to their age, and that their physical, intellectual, emotional and social development depends on legal and social mechanisms allowing them to flourish.
However, serious concerns remain about the exploitation and abuse of children internationally. The effectiveness of international law depends on:
- Domestic measures taken to implement rights contained in treaties like CROC
- Pressure brought to bear by treaty parties
- Monitoring by treaty-based human rights committees
Exam guidance: When evaluating the effectiveness of responses to children and young people's legal issues, consider:
- Whether legislation aligns with international standards (particularly CROC)
- Evidence of practical implementation and outcomes (e.g., recidivism rates, survey data)
- Gaps between stated principles and actual practice
- Specific criticisms from legal bodies, researchers and advocacy organizations
- Comparison with best practice in other jurisdictions
Remember!
Key points to remember:
- The Seen and Heard inquiry (1997) found that of young people felt police rarely treated them with sufficient respect
- CROC Article 37(b) states arrest should be a 'last resort', but it's often used as an investigative tool, particularly affecting Indigenous youth
- Detention and harsh sentences are generally ineffective deterrents to reoffending, yet continue to be imposed
- Youth Justice Conferencing shows mixed effectiveness - Dr Weatherburn's research found it no more effective than Children's Court in reducing reoffending, possibly because it doesn't address underlying causes like substance abuse, family dysfunction, and educational problems
- Australia has deficiencies in CROC compliance including the corporal punishment defense, junior pay rates, public space restrictions, and a potentially too-low age of criminal responsibility ( years)
- Internationally, approximately million children work as child laborers and up to children are involved in armed conflict
Key terms:
- CROC - Convention on the Rights of the Child
- Restorative justice - an approach focusing on repairing harm and involving victims, offenders and community
- Recidivism - reoffending after previous conviction or intervention
- Corporal punishment - physical punishment, especially of children, by hitting
- Net widening - when interventions capture more people than intended, bringing into the system those who might have been dealt with informally