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Background Paper on New Zealand Youth Justice Process
Michael Brown, Principal Youth Court Judge, New Zealand

Posted 1995-06-13

Judge Michael Brown

Paper presented at
International Bar Association
Judges' Forum
Section On General Practice
Edinburgh, 10-13 June 1995


This paper is intended to provide the opportunity to examine, inter alia, practices which have been adopted in the New Zealand Youth Justice area.1 As yet there is no equivalent mechanism in the adult jurisdiction.2

From the date of its implementation I have been involved as the Principal Youth Court Judge. The observations and inferences which I draw are largely pragmatic.

Youth Justice is neither a fashionable area attracting research funding, nor is it one to evince profound political interest3 other than the inevitable denunciatory tracts bemoaning the lack of moral fibre in each succeeding younger generation.

BACKGROUND

The New Zealand Children, Young Persons and Their Families Act 1989 came into force on the 1st day of November of that year. The legislation introduced new principles and procedures for dealing with young people who offend against the law. The new law provided for jurisdictional separation between children and young persons in need of care and protection and those who offend against the law. Measures for dealing with young offenders were designed to eliminate the blurring of principles and processes between Care and Protection and Youth Justices which characterised the previous approach. "Ideologically there was a shift towards the principals underlying the Justice Model, but without embracing that model's more doctrinaire aspects which contribute to the 'just deserts' pseudonym."4

To that extent the new system followed many overseas trends, but with some new and unique features.5 Immediately significant changes occurred with much greater police diversion of offenders, far fewer young people appearing in Court or being detained in residences and prison. There has been more family involvement than ever before. Different cultural practices and the needs of victims were at last being recognized, although it must be acknowledged that there is potential for much greater improvement in that last mentioned area.

The philosophies and principles which are being used in the Youth Justice field in New Zealand are, I believe, inextricably based on the communitarian concept. With a greater involvement of families and wider families we have seen a recognition of the strength of interdependencies--attachments which evoke personal obligation to others within a community of concern. These attachments are not perceived as isolated relationships of convenience but as matters of profound group obligation.6

Within the Act there is a clear statutory intention to attempt to strengthen families and foster their own means of dealing with their offending young people. In order to exert informal social controls and hopefully nullify the excesses and inflexibility of crude State intervention.

Certainly in New Zealand, I believe, there are great strengths within the community. In the period 1980-1989 when I was based in the Henderson District Court of West Auckland I witnessed the diverse strengths and incredible generosity of numerous people of different races and all walks of life involved in all aspects of community activity.

One need only reflect on the many aspects of New Zealand life which are dependent on voluntary labour. About 99 percent of sports coaching is done by unpaid enthusiasts. There has been similar involvement in the cultural, charitable, artistic, religious and political facets of New Zealand society revealing an immense reservoir of concern and sense of group obligation.

But when we talk of communities we must include victims of offending. The primary objectives of a criminal justice system must include healing the breach of social harmony, of social relationships, putting right the wrong, making reparation rather than concentrating on punishment. The ability of the victim to have input at the family group conference (of which I will speak later) is one of the most significant virtues of the new Youth Justice procedures. To that end we have found victims must be sympathetically encouraged to attend these meetings and every step taken to allay any fears or apprehension they may have. In return, on the basis of our experience to date, we can expect to be amazed at the generosity of spirit exhibited by so many victims and (to the surprise of many professionals participating) the absence of retributive demands and vindictiveness. This response from victims is in direct contrast to the hysterical, media-generated responses to which we are so often exposed. I think too it puts in question the stance so often taken by the enforcement authorities that "they represent the interests of victims". As in so many aspects of life, the reality is far more complex.

Superficial criticism of the legislation is sometimes made to the effect, "How can they contribute(i.e. the family) when they themselves are to blame?" My response is that for the last fifty years at least we have over-ridden family requests and in far too many cases taken children out of their families, transported them hundreds of miles away from those families and returned them, sometimes years later, as well-educated criminals. It is absurd to expect all families, simply by the stroke of the legislative pen, to suddenly become mature decision-makers. What amazes me is how often family groups, with input from police and victims, are achieving creative and constructive outcomes.

STATUTORY INVOLVEMENT OF VICTIMS

Section 208 of the legislation set out eight principles by which any Court exercising powers conferred under the Youth Justice provisions, shall be guided.

These included:

"(g) The principle that any measures for dealing with offending by children or young persons should have due regard to the interests of any victims of that offending..."7

Additionally, a feature of the new law had introduced a new diversion process and the family group conference procedure.8 The family group has a status in any proceedings and has the right to make representations. Most importantly, although I suspect the significance was not initially apparent to the law draftspersons at the time, provision was enacted defining the persons entitled to attend these family group conferences.

These included:

"(f) Any victim of the offence or alleged offence to which the conference relates, or a representative of that victim..."9

"Victim" was statutorily defined.10

What immediately emerged and has consistently been emphasised to me by legal practitioners, police and family groups is the fact that the quality of conferences is immeasurably enhanced by the presence of victims. Some go further and suggest their presence is critical. At the same time once these groups began to be convened it became obvious that there was huge potential to address the needs of that otherwise largely neglected group, a group who can justifiably complain first of being victimized by the offender and then by an unresponsive Justice system. In a society so preoccupied with punishment that offenders are not held accountable for their actions and victims are forgotten.

THE PROCESS IN ACTION

Inevitably with any new law, particularly one with concepts as radical as those I have described, there have been a number of less than satisfactory conferences. With the advantage of hindsight, ideally we would have run pilot schemes and stipulated for a lengthy run-in period. It was optimistic in the extreme to assume participants would possess the skill levels to understand the subtleties of the Act. Training of the professionals and definitions of their roles remain still, in my view, inadequate.

The aspirations expressed in the Act to empower families inevitably require a disempowerment of those who previously exercised the decision-making function. In particular, social workers, police officers, lawyers and judges. In addition, there are still pockets of resistance to that fundamental change.

On reflection, I believe there has been insufficient effort made to sell the legislation to the public and victims.

Notwithstanding major practice inadequacies, astonishing progress has been and continues to be made. Predictably, this is in direct proportion to the quality and enthusiasm of the personnel involved.

I have annexed in the appendix a diagrammatic model of my version of the dynamic of the ideal family group conference. The model has, I think, major correlations with a restorative justice profile and very much accords with the spiritual concepts of the New Zealand Maori and particularly in situations where there has been a breach of etiquette or violation of the law where a ceremony of healing and reconciliation is an essential part of that process, not only for the offender but also for his family and wider family. To those who might be interested, I have annexed an article by Reverend Father Tate, a Maori intellectual and Roman Catholic Priest, to illustrate further those values in what is a short but extremely poetic and moving contribution. [NOTE: article not included here]

As you will see, the victim, more particularly the victim's needs are the essential feature of the conference with the recognition that crime and its consequential damage requires to be healed. This profile was constructed after discussing the experiences of police and social workers throughout New Zealand.

PRESENT ASSESSMENT OF THE NEW ZEALAND SCHEME

The benefits of victim involvement have been profound and hugely beneficial in dealing with youthful offenders, particularly with regard to the goals of accountability, but it has become obvious that the victim's attendance must be encouraged in every way possible. To this end I have always taken the view that the legislation must be interpreted robustly and that if the victim wishes to have their own supporters present, this is essential. We presently have a bill before the New Zealand Parliament proposing an amendment which would authorise the victim to be accompanied by any reasonable number of persons for the purpose of providing support to that victim. The police have been supportive of the role of a group of victim support personnel. The experience to date is that if those victim support people understand the philosophy of the conference and the various steps towards the healing of the damage of the crime, they can be very useful. On the other hand, if the victim support person is simply present to reinforce and insist upon the retributive treatment of the offender, this is an impediment to the whole conference process. Again our experience suggests that it depends on both the quality and training of the victim support representatives, if that strategy is to continue.

I have already emphasized the critical importance of the participation of the victim and it is clear to achieve this, those convening these conferences must prepare victims as to the procedures, arrange times for the conference which are suitable and discuss with them the venue and the process itself including advising the victim of the gamut of emotions which are likely to be experienced and the validity of those feelings. We have found that sometimes the involvement by both the police and the convening social worker in discussions with the victim's preconference have been most reassuring and helpful.

It would seem obvious, but what is often required is basic courtesy being extended towards victims and this is prior to the conference, during the conference and subsequently.

Inevitably commentators allege that requiring a victim to attend a conference is simply a revictimization. That possibility cannot be entirely dismissed. On the other hand, I have taken the liberty of annexing to the paper a most interesting letter which was sent to me by a couple who attended one of these conferences initially with considerable trepidation. The letter itself raises another aspect relating to a field of criticism where bicultural procedures would appear to introduce further tensions. However, the letter speaks for itself and is reprinted with the kind permission of the authors. [NOTE: letter not included here]

What we have learnt from victims has been so profound as to cause many of us who participate in this field to reassess our whole view of a justice system. I have earlier spoken of the incredible generosity and concerns which victims have exhibited towards offenders and their families, but I stress that this can only be achieved in an environment which I have attempted to depict in my diagrammatic model where the victim's first instinct may be to let both the offender and his family understand the hurt and fury that they feel, that the victim must be given the opportunity to bring home to those present at the conference of the loss which may be emotional as well as economic. It is clear too that one of the questions victims need to know and so frequently ask is under this heading of understanding--"why me?" Undoubtedly also required is the acknowledgment of the effects of the offending and having to confront his victim. To be confronted with the reality that this is not simply a burglary, for example, but in fact represented a gross and obscene violation of someone else's home and a source of fear and insecurity which this often brings to the families, particularly children of victims and of course other occupants of the house and frequently the whole neighbourhood.

Remorse we found is also very much a critical feature and the subsequent attitude that the victim will take and it is important too that the families of offenders are brought to understand the impact of offending. In the diagram I have included shame as an informal social control mechanism. The shaming involved is not one that alienates someone but rather which brings home to the offender that behaviour of this type is shameful and it brings shame on the family. Professor John Braithwaite from the Australian National University speaks of what he calls reintegrative shaming which I have interpreted as "We love you but that is unacceptable behaviour".

Time and again reparation too has been seen as a critical aspect. The attitude of victims which, in my view, depicts precisely the major defect in our present criminal justice system is summarised in the expression "We don't want him to go to gaol but we want our letterbox repaired or the panelbeating of the car carried out etc.". In a legal system where justice has become essentially a matter of establishing blame then administering punishment, the reparation to the individual affected has at best become a secondary consideration.

The bonus for the whole process is that once the needs of the victim are seen to have been addressed, it is then possible to constructively deal with the appropriate method of addressing the offending and the needs of the young person. A striking statistic which has emerged is in fact that only a very small number of Court Orders are ever made. Informal orders involving those matters where the young person has been brought to Court and a Court ordered conference has occurred, are almost invariably being accepted by Courts. Ironically, from time to time victims have come along to the subsequent Court proceeding to advocate and urge the acceptance of the plan.

CONCLUSION

What we have experienced in this field has been a dramatic phenomenon. Some participants have been unable to effect the necessary attitudinal changes and inevitably with change there has been resistance. It is obvious that there is a need for training of the professionals involved. A need to develop an expertise and develop practice skills. A necessary ingredient is one described by the poets as a willing suspension of disbelief.

We are favoured in New Zealand in having a police culture sympathetic to diversion and in the social atmosphere of New Zealand an understanding of the need for the indigenisation of staff and raising of levels of bicultural and multicultural understanding. It is fundamental to the process that enforcement and welfare staff as well as Counsel and Courts develop the subtle skills of knowing when to withdraw from the process.

Figures to date show on a national average victim attendance slightly in excess of 50 percent with variations in some fields as high as 83 percent and obviously in others, much less. To me, however, every victim who attends raises the participation by 100 percent. Prior to this legislation there was nil input. I would be the first to acknowledge that ours is a very young system. There have been all the teething problems and we will never achieve the level of perfection which theorists would like to see. Perhaps the most satisfactory response to date, however, has been the complaint expressed by such bodies as the New Zealand Police Association that the system is only working in 90 percent of cases.

It may be appropriate to end this paper not with my own views which I freely concede are coloured by my unabashed enthusiasm for the process. So I will conclude with two quotations; the first, from one of my brother District Court Judges, F.W.M. McElrea and the second, from Michael P. Doolan, the principal author of the Youth Justice provisions of the 1989 Act and to whose writings I have previously referred.

"The new paradigm does not easily fit within the old parameters--liberal/conservative, justice/welfare, punishment/rehabilitation, justice/mercy. It cannot be described in those terms because it requires a new way of thinking, and of doing justice.

My conclusion therefore is that we indeed do have a new paradigm of justice. It is not simply an old model with modifications. A new start has been made, new threads woven together and a new spirit prevails in Youth Justice in New Zealand. It is a spirit which I would characterise as responsible reconciliation. The term 'reconciliation' connotes a positive, growing process where strength is derived from the interaction of victim, offender and family in a supportive environment. It is a 'responsible' process in that those most directly affected take responsibility for what has happened and for what is to happen. In the process most of the power previously vested in the court is transferred to the local community which now carries this new responsibility.

Perhaps when the real strengths of the new model have been understood we will be able to take it beyond the Youth Court, find a mechanism for defining a relevant community group for adult offenders, involve victims and the wider community in finding solutions, and in the process remove from the courts and our prisons much of the burden of unrealistic expectation under which they labour."11

"When I look back on the practice and the results of the last three years how much I wish we had expanded this statutory base of victim involvement. Victim rights to justice were included as a principle in the new Act, not quite as an aside, but certainly not with the planned purpose of the way that the principle is being applied today. We do have a new paradigm of justice operating in this country, some of it permitted, but not explicitly envisaged, by the Act itself I suppose that I can at least be grateful that the Act has enabled this development to occur and has not stifled it."12

ENDNOTES

1 The legal age of criminal responsibility in New Zealand is 10 years, but, except for charges of murder and manslaughter no child between 10 and 13 years may undergo criminal proceedings. They can be dealt with in the Family Court Division. Those appearing in the Youth Court are 14 years and up to but not including the age of 17.
2 17 years of age and over.
3 "Surely an oxymoron?"
4 M.P. Doolan--"Legislation and Practice" The Youth Court in New Zealand. A New Model of Justice--Legal Research Foundation Publication No. 34 1993--University of Auckland p17.
5 The goals of youth justice in New Zealand may be described as follows:
(1) Achieving justice
Accountability--emphasising the importance of young people paying an appropriate penalty for their crime and making good the wrong they have done to others.
Reducing time frames--making time frames realistic given the age of the child or young person.
Protecting rights--emphasising the protection of young people's rights.
Diversion--keeping young people out of courts and preventing the use of labels that make it difficult for young people to put early offending behind them.
(2) Responding to needs
Enhancing well-being and strengthening families--Making available services that will assist the young person and their family.
(3) Providing for participation
Family involvement--including families and young people in making the decisions for themselves and taking charge of their lives.
Victim involvement--involving victims in the decisions about what will happen.
Consensus decision making--arriving at decisions which are agreed to by the family, the young person, police and victims.
(4) Being culturally appropriate
Culturally appropriate ways of resolving matters--allowing families to choose their own procedures and the time and place of meetings.
6 Braithwaite--Crime, Shame and Reintegration 1989.
7 S.208(g) Children, Young Persons and Their Families Act 1989.
8 Previous diversion mechanisms adopted in New Zealand had two major defects. They had been largely constructed around panels of officials and professionals--the Children's Boards and Youth Aid conferences--and functioned as quasi-judicial bodies. Second, they have always been bypassed whenever police exercised their powers of arrest. With more than 60 percent of young offenders appearing on arrest, less than 40 percent of those who appeared had been considered for a diversion option. Worse still, there was evidence (Morris and Young, 1987) that the diversion mechanisms were having a net-widening effect, by drawing into their ambit very petty offenders who should and could have been handled in much less formal ways.
The policy imperatives were to find a diversion mechanism that was not bypassed by arrest, that was not susceptible to net-widening, and which eliminated the quasi-judicial panel approach. The result is the family group conference, convened and facilitated by a new statutory official, known as the Youth Justice Coordinator. A family group is defined in law to recognize different cultural understandings of family. It includes whanau, hapu, and iwi for Maori and equivalents in the various Pacific Island cultures. Basically, it means extended family, something more than the nuclear caregiver family. A family group conference is a meeting of the culturally-defined family group with officials.
Features of the diversion are:
(1) Where a child or young person is charged with an offence, no information may be laid until a family group conference has been held. The prosecuting authority must refer the matter to the Youth Justice Coordinator.
(2) Where the offender has been arrested, the court may not accept a plea, but must refer the matter to a Youth Justice Coordinator to convene a family group conference. Exceptions are where the charge is a purely indictable offence, or where on legal advice the young person indicates a not-guilty plea. About 95 percent of cases are estimated to be available for diversion.
(3) The family group conference is authorized to find alternatives to prosecution in dealing with an offender who admits guilt.
(5) Where a family group conference agrees on an alternative measure, the Youth Justice Coordinator is bound to try to persuade the prosecuting authority to accept that decision.
(6) Where a family group conference does not agree on an alternative, the matter proceeds to court for adjudication. The law provides, however, that the court be informed of the wishes of the family group, so that prosecuting authorities may be held accountable should they override the plans, decisions or recommendations of the family group without acceptable cause.
(7) The conference has a role in advising courts on appropriate sanctions for the young offender where the family group conference is unable to prevent a prosecution.--Doolan Ibid pages 21 and 22
9 Ibid s251(i)(f).
10 Ibid s2 "Victim" means a person who, through or by means of an offence, suffers physical or emotional harm, or loss of or damage to property; and where an offence results in death, the term includes the members of the immediate family of the deceased.
11 Ibid pp 13, 14.
12 Transcript of NZ Law Conference session on the Youth Court, 4 March 1993, p.14.







Diagrammatic model of family group conference dynamic.