When New Zealand’s current model of youth justice was introduced by the passage of the Children, Young Persons and Their Families Act 1989 (CYPF), it was innovative, “world renowned” and, a “new paradigm shift”.1 Through time, our resistance to raising the upper age to include 17 year olds within Youth Court jurisdiction has put New Zealand out of step with domestic legislation, international obligations and comparative international jurisdictions.
To continue to promote a youth justice system based upon fairness, empirical evidence, decarceration, and community and economic wellbeing, New Zealand should extend the Youth Court jurisdiction’s upper age to, at least, include 17 year olds. Children should not be treated as adults by the justice system. To become a world leader once more New Zealand should consider raising the age to 25, when young people’s brains are fully developed.
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The Architecture of New Zealand’s Youth Justice System
The bedrock of the Act is the set of legislative principles in sections 4, 5, 6 and 208. These guiding provisions and principles have been repeatedly recognised by the Courts as undoubtedly informing the exercise of all power conferred by the Act. Values include strength and maintenance in iwi, hapū and whānau; focusing on how decisions may impact on a child’s welfare; and a holistic consideration of age, identity, cultural connections, and cognitive development. Young people are encouraged to take responsibility and accountability for their behaviour, in a way that acknowledges their needs and emphasises development in a socially positive way.
Specific provisions ensure that proceedings should: not solely be utilised to provide welfare to a young person or their family; take the least restrictive form appropriate; divert from the formal criminal justice system unless it is in the public interest not to do so; consider age as a mitigating factor in sentencing; aim to keep young people in the community unless public safety is at issue; use measures to deal with offending to address the underlying causes of that offending; provide considerations, by having proper regard to, to the interests and views of any victims; and recognise that the vulnerability of young people entitles them to special protection during the investigation of offences.
IN SHORT, WHY SHOULD NEW ZEALAND EXTEND THE JURISDICTION OF THE YOUTH COURT?
Because it will achieve better outcomes for young people and communities
- The Youth Court system responds to the needs of young people in ways that are appropriate to their level of cognitive development, maturity, and situation
- It allows the community, including the family and the victim, a role in holding the young person to account
Because it will be cost effective in the medium and long term
- An extension of Youth Court’s jurisdiction to 17 year olds has already been costed and was judged to be acceptable by the Cabinet Business Committee.
- Other jurisdictions that have implemented similar policies have not incurred significant additional costs
- Lower recidivism rates would create additional savings to victims of crime, members of the public, and correctional facilities.
Because it will help the Government to achieve its Better Public Service targets
- An extension of the upper age would reduce New Zealand’s recidivism rate. Evidence shows that the longer young people are prevented from entering into the adult system, the less likely they are to reoffend.
- The Youth Justice System offers a more culturally appropriate forum for Māori, and will help to reduce the mass incarceration of Māori people.
Because it will make justice consistent with other definitions of youth
- Most of New Zealand’s domestic legislation refers to adults as being over 18.
- Increasing the age will alleviate inconsistencies within the CYPF Act.
Because it will bring New Zealand in line with its international obligations and comparative world leaders
- New Zealand is a signatory of the UNCRC, which defines ‘child’ as being under 18 years old.
- Once world leaders, New Zealand falls behind many commonly comparable jurisdictions on this issue
AND NOW WITH REASONS – WHY SHOULD NEW ZEALAND EXTEND THE JURISDICTION OF THE YOUTH COURT?
Because it will achieve better outcomes for young people and communities
The achievements of the current youth justice system have been significant. They include a greater ability to deal with issues of offending by young people in ways that are appropriate to their level of cognitive development, maturity, and situation. Diversion, decarceration, and restorative justice are integral mechanisms of the youth justice system.
A prevalent tool is the Family Group Conference (FGC), a statutory forum where the young person, their family, State officials such as the police, and the victim of the offence come together to decide on a plan to deal with offending by that person.2 Life outcomes since FGCs saw that a sample of young people were able to, “develop positive goals and achieve success in education, employment, or developing positive relationships,” whilst not wanting further involvement in crime, and reporting positive perceptions with regard to their current situation and future possibilities.3 Accountability is being achieved almost universally through the plans agreed at FGCs and orders of the Youth Court.4
Section 280(g) of the CYPF Act provides that, “proper regard” must be given to the interest of the victim(s) of the offence.5 This allows victims to play a direct role in important decision making through the FGC, a key mechanism of the youth justice system.6 The adult system, although statutorily recognising victim’s rights, is largely exclusionary of victims, and works of the assumption that the harshness of a sentence should be equivalent to the harm suffered by the victim and their family.7 Real and pivotal participation by victims in the justice system provides an enhanced forum for reintegration and reconciliation, proving justice not only to be done, but seen to be done in the eyes of the public.
Since the adult age of criminal majority was set as 17 years old in 1974, there has been significant scientific development around adolescent brain development, particularly the role of the prefrontal cortex in impulse control and its subsequent impact on risk taking behaviour in young people.8 This lack of understanding was recognised by the Court in R v R, where a young offender threw a concrete block over a bridge into oncoming traffic, killing a driver.9 Whilst to an adult the consequences of such actions are clear, Winkleman J said she was not satisfied that the, “full consequences of [his] actions were not foreseen by [him]”.[ 10. ibid at 32] Development of the prefrontal cortex has been found to continue well into the mid-twenties. 10 This is widely accepted as having a direct impact on youth offending, and in-part explains the spike in the rate of offending between the ages of 17 to 23 year olds. 11 To be consistent with widely accepted scientific research and become a world leader in recognising the needs of young people, New Zealand should consider extending the age of criminal majority to 25 years old.
Counter-arguments based upon 17 year olds ‘using’ the youth justice system to be afforded a lesser penalty for violent offending are unfounded. Upon amendment, serious offending by 17-year-olds will still be remitted to the adult court system. Children and young people who are charged with murder or manslaughter are always dealt with in the adult court and subject to adult sentences. Young people charged with serious crimes (for example, aggravated robbery, aggravated burglary and rape) can be transferred to the adult court (where imprisonment is available) for trial and/or sentence. Options such as confinement to a youth justice residence and community based orders (where appropriate) are also available to the Youth Court. 12
Because it will be cost effective in the medium and long term
Claims of the extension of the upper age leading to an overwhelming influx of 17 year olds have been described as “unfounded” in other jurisdictions.13 In Victoria, fewer 17 year olds than 15 or 16 year olds have appeared in the Youth Court jurisdiction since the decision to include 17 year olds. 14 In 2013, those aged 17-19 constituted only 12.67 per cent of those appearing before court across New Zealand.15 The Youth Courts have increased capacity due to the decrease in youth offending, so now is a good time to include 17 year olds.
Even where considering significant initial operational costs, comparative cost-benefit analyses by other jurisdictions have shown that although youth justice systems have higher up-front costs than the criminal justice system, the, “economic destruction” of convicting 17 year olds as adults alongside the rippling impact across communities significantly outweigh worst-case scenario initial costs.16 Lower recidivism rates create additional savings to victims of crime, members of the public, and correctional facilities.17 Furthermore, in the longer term, youth benefiting from better employment prospects generate increased taxes to the state, stimulating the economy.18
Operational costing and the fiscal impact of an extension to the upper age of the Youth Court jurisdiction was considered in 2007 by the Cabinet Business Committee.19 In 2007, approximately 1.6% of Corrections’ community sentences were served by 17 year olds, and about 1% of the average prison muster was at one time 17 years old. The two main offending categories of difference between 16 and 17 year olds were imprisonable traffic offending, especially drink driving, and public disorder offences. 20 The main offending category for youth offenders was property offences.21
The majority of the impact was on the Court’s Case Management System, other wider impacts on the Ministry of Justice included: judicial sitting hours and judge’s time; rostered Youth Court days; Youth Advocate costs; court ordered report costs; increases in custodial arrangement and resources including courtrooms, staff, resources, and training; the potential for two additional Youth Court judges and three additional court registry staff.22 At the time, the Cabinet Business Committee agreed to include the extension of the upper age, subject to availability and funding for and the provision of appropriate Youth Justice programmes and services to support the increase in the upper age definition.23
The Cabinet Business Committee costed the increase of the upper age based on three scenarios, based upon the projected population rates for 2011/2012 and the apprehension rates at the time, in 2007:24
- 45 percent of 18,514 apprehensions of 17 year olds are prosecuted and appear in the Youth Court;
- 35 percent of 18,514 apprehensions of 17 year olds are prosecuted and appear in the Youth Court, and;
- 20 percent of 17,588 apprehensions of 17 year olds are prosecuted and appear in the Youth Court (assumes a 5 percent reduction in apprehensions as a result of improved practice in Child, Youth, and Family alongside an increase in effective youth justice interventions as a result of Budget 2008, and subsequent years, proposals)
Table 1 show the estimated total cost in 2007 of each scenario, including the increase in the workload of the Youth Court; the decrease in the District Court workload; the impact on judge numbers; the impact on registry staff numbers; Youth Advocate costs and Youth Court Ordered Report costs.
Table 1: Financial Implications for lifting the jurisdiction in the Children, Young Persons, and Their Families Act 1989:25
At the time of this costing, 16% of young people were prosecuted through the Youth Court. Taking the most likely scenario of 20% prosecution rate for 17 year olds, then the additional cost will be approximately $2.6million annually. However, this additional cost does not account for the decrease in cost for the District Court. It is likely that extending the upper age of the Youth Court jurisdiction will actually save money, given that the District Court will save approximately 10,000 cases per year, and the the Youth Court only gains 3,366 cases due to increased use of diversion. An updated costing would reflect the decrease in youth offending and therefore Youth Court cases.
Because it will help the Ministry of Justice to achieve its Better Public Service targets
Young people diverted from formal justice processes are less likely to reoffend than those subject to these processes, even when their offending is of a similar seriousness.26 Including 17-year-olds in the Youth Court jurisdiction means the prevention of children entering into the adult system for as long as possible, preventing the negative psychological and long-term impact of incarcerating young people.27 Early intervention, the use of diversionary strategies and avoidance of Youth Court charges are likely to prevent reoffending and ensure positive life outcomes.28 The reduction of reoffending could be a consequence of young offenders taking the opportunity to respond to psychological problems, alcohol and drug misuse, educational failure and lack of employment opportunities.29
International research indicates the youth justice processes can be more effective than adult systems at reducing re-offending: across six studies, even where differences between transferred and retained youth were controlled for, youth who were transferred from the juvenile court system to the adult criminal system were 34 percent more likely than youth retained in the juvenile court system to be rearrested for violent or other crime.30 Another study, using a matched pairs sample design where one young person was transferred to the adult court whilst the other was retained in the youth justice system, found those transferred were more likely to reoffend, in a violent way, after turning 18.31 Longhran and others found that transferring young people to the adult system was less effective for those who committed property offence, a large proportion of youth offending in New Zealand.32
The impact of labelling young people as criminals has been linked to adult reoffending, and the more extreme and constrictive approaches toward youth justice have been linked to young people self-identifying as delinquents, and subsequently interacting with other delinquents, engaging in further criminal offending.33 Offenders dealt with at a lower level and who received less severe outcomes are less likely to be convicted as an adult and to have poorer life outcomes.34
Finally, extending the upper age of the Youth Court jurisdiction to include 17 year olds means that both Māori and Pasifika young people have access to a more culturally appropriate forum of justice in the Rangatahi and Pasifika courts. At all stages in the criminal justice process, Māori people are disadvantaged and significantly over-represented. This is an issue particularly prevalent in young offenders, constituting almost half of all apprehensions of those aged 17-20 in 2011, 2012 and 2013.35 Although the courts still follow Pākehā methods of justice, utilizing the marae as a venue and the inclusion of whānau in decision making processes through the FGC allows tikanga to play a greater role in the justice system. Clinical psychologist, Dr. Ian Lambie, believes that including young people in the youth justice system would have the most immediate impact on reducing the number of Māori people entering the criminal justice system, than any other government action.36
Because it will make justice consistent with other definitions of youth:
Currently in New Zealand law, young people have certain rights and protections embodied by statute in recognition of their vulnerable status. The various definitions of “child” and “young person” are wholly inconsistent with the CYPF where ”young person” means a boy or girl of over the age of 14 years but under 17 years, not including any person who is or has been married or in a civil union.37 Examples of these inconsistencies are reflected below:
- In the Electoral Act 1993, “adult” means a person over the age of 18 years.38
- The Marriage Act 1955 defines “minor” as a person under the age of 18.39
- In the Social Security Act 1964, “child” means a single person under the age of 18 years other than a person who is aged 16 or 17 years and is financially independent.40 This means many 17 year olds are excluded from receiving Job Seeker benefits.
- The Care of Children Act 2004 defines “child” as a person under the age of 18 years.41
- The Education Act 1989 requires New Zealand citizens to be enrolled between the ages of six and 16, but provides free education for people aged between five and 19 years old.42
- The Prostitution Reform Act 2003 prohibits people aged under 18 years from providing commercial sexual services to anyone.43
- In the Crimes Act 1961, for the purposes of sexual consent, “young person” means somebody under the age of 16 years, but parents and/or guardians have a legal duty to provide necessities and protect from injury, children under the age of 18 years whom they have actual care and charge of.44
- The Sale and Supply of Alcohol Act 2012 requires purchasers to be over the age of 18, and places the same age restrictions on illegally being in licensed premises, and drinking or possessing alcohol in public without a parent or guardian.45
- The Smoke-Free Environment Act 1990 prohibits the supply of tobacco products to those under 18.46
Within the CYPF Act:
- Some young persons, who offend before the age of 17 but are charged after they reach 18, are tried in adult courts, this was recently described as “unfair” by the Court of Appeal.47 NZCA 562.]
- A Court appointed guardianship order remains in place until the young person to whom it relates attains the age of 20 years old.48
- A 16 year old who is living in a de facto relationship is treated more favourably than one who is married or civil unioned.49This is inconsistent with Article 40.3 of CRC, and, according to children’s rights expert Robert Ludbrook, amounts to discrimination on the ground of age and marital status under the Human Rights Act 1993.50
Because it will bring New Zealand in line with its international obligations and comparative world leaders:
The United Nations Convention on the Rights of a Child (CRC) was ratified by New Zealand in 1993 and defines “child” as, “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”.51 It urges state-parties to ensure children are, “dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.”52 The Beijing Rules 1985 requires youth justice to be conceived as a fundamental part of the national justice framework. This framework should emphasize the well-being of the young person and ensure proportionality in any reaction to young offending.”53 Although not formally incorporated into domestic law, New Zealand’s alignment through ratification means legislation should be interpreted, in so far as possible, to be consistent with our obligations.54 3 NZLR 269 (CA) at 289.]
New Zealand has previously expressed in its reports to the United Nations Committee on the Rights of the Child that it, “takes its obligations seriously”, and has a, “strong commitment to ensuring that the rights of children are protected.”55.] Raising the upper-age of the Youth Court would bring New Zealand in line with its obligations to CRC, which is important given our status as a signatory. This was a primary motivation for the proposal of the 2007 amendments to the CYPF Act.56
A key concern is that New Zealand is currently out of step with both our international obligations, and across jurisdictions that we would usually compare ourselves to: Australia (with the exception of Queensland), England and Wales, Northern Ireland, Germany, Canada and the majority of the United States are amongst nations who define child or young person as including 17 year olds, as demonstrated in Table 2.
Table 2: Definition of Juvenile in Comparative Jurisdictions
- N Lynch Youth Justice in New Zealand (Brookers, Wellington, 2013) at 10. ↩
- ibid at 26 ↩
- G Maxwell and others Achieving Effective Outcomes in Youth Justice Final Report (Ministry of Social Development,Wellington, 2004) at 290 ↩
- ibid at 297 ↩
- Section 280(g) CYPF Act 1989 ↩
- N Lynch “Playing catch-up? Recent reform of New Zealand’s youth justice system” (2012) Crime & Criminal Justice 507 at 512. ↩
- A Ashworth “Responsibilities, rights and restorative justice” (2002) British Journal of Criminology 578.↩
- Letter from Dr. Ian Lambie (Associate Professor in Clinical Psychology) to the University of Auckland Department of Clinical Psychology regarding the age of criminal majority (24 February 2015). ↩
- R v R CRI-2005-092-14652 6 September 2006. ↩
- K Monahan and others “Psychological (im)maturity from adolescence-limited and persisting antisocial behaviour” (2013) 25 Development and Psychopathology 1093. ↩
- I Lambie, J Ioane and C Best “17 year olds and youth justice” (2013) NZLJ 316 at 317. ↩
- Social Services Committee “Children, Young Persons, and Their Families Amendment Bill (No 6): Initial Briefing” (14 April 2008) (Obtained under Official Information Act 1982 Request to the Ministry of Social Development) at 38. ↩
- I Lambie, J Ioane, and C Best “17 year olds and youth justice”, above n 12, at 319. ↩
- Sentencing Advisory Council Sentencing Children and Young People in Victoria (Sentencing Advisory Council, Melbourne, 2012) at 95. ↩
- I Lambie, J Ioane, and C Best “17 year olds and youth justice”, above n 12, at 319. ↩
- State of Illinois Department of Human Services Raising the age of juvenile court jurisdiction: the future of 17 year olds in Illinois’ justice system (2013) at 26. ↩
- ibid at 26 ↩
- C Henrichson and V Levshin Cost Benefit of Raising the Age of Juvenile Jurisdiction in North Carolina(2011, Vera Institute of Justice) at 20. ↩
- Office of the Ministry of Justice “Briefing paper: Meeting with the Principal Youth Court Judge” (28 November 2007) (Obtained under Official Information Act 1982 Request to the Ministry of Justice) at 9.↩
- Office of the Ministry of Justice “Update of the Children, Young Persons, and Their Families Act 1989 (operational implications for District Courts)” (16 November 2007) (Obtained under Official Information Act 1982 Request to the Ministry of Justice) at 19. ↩
- Jin Chong Youth Justice Statistics in New Zealand: 1992 to 2006 (Ministry of Justice, Wellington, 2007) at 40. ↩
- above 10 at 11 ↩
- Office of the Ministry of Justice “Briefing paper: Meeting with the Principal Youth Court Judge” (28 November 2007) (Obtained under Official Information Act 1982 Request to the Ministry of Justice). ↩
- Office of the Minister for Social Development and Employment “Updating the Children, Young Persons, and their Families Act 1989: Part A – Operational and Cost Implications” (2007) at 20. ↩
- Office of the Ministry of Justice “Update of the Children, Young Persons, and Their Families Act 1989 (operational implications for District Courts)” (16 November 2007) (Obtained under Official Information Act 1982 Request to the Ministry of Justice) at Appendix 2. ↩
- G Maxwell and others Achieving Effective Outcomes in Youth Justice Final Report (Ministry of Social Development, Wellington, 2004) at 31. ↩
- I Lambie and I Randell “The impact of incarceration on juvenile offenders” (2013) 448 Clinical Psychology Review. ↩
- ibid at 291 ↩
- ibid at 291 ↩
- Centers for Disease Control and Prevention “Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services” Morbidity and Mortality Weekly Report (2007) 56 MMWR 1. ↩
- Lanza-Kaduce and others “Juvenile Offenders and Adult Felony Recidivism: The Impact of Transfer” (2005) Journal of Crime and Justice 59. ↩
- Longhran and others “Differential Effects of Adult Court Transfer on Juvenile Offender Recidivism” (2010) Law and Human Behaviour 476; Jin Chong Youth Justice Statistics in New Zealand: 1992 to 2006(Ministry of Justice, Wellington, 2007) at 40. ↩
- J Bernburg and M Khron “Labelling, Life Chances and Adult Crime: effects of Official Intervention in Adolescence on Crime in Early Adulthood” (2003) Criminology 2187; U Gatti. R Tremblay and F Vitaro “Iatrogenic effect of juvenile justice” (2009) Journal of Child Psychology and Psychiatry 991. ↩
- Social Services Committee “Children, Young Persons, and Their Families Amendment Bill (No 6): Initial Briefing”, above n 61, at 300. ↩
- Letter from Dr. Ian Lambie (Associate Professor in Clinical Psychology) to the University of Auckland Department of Clinical Psychology, above n 8. ↩
- Letter from Dr. Ian Lambie, above n 8. ↩
- Section 2(1) CYPF Act. ↩
- Section 1(a) Electoral Act 1993. ↩
- Section 2(1) Marriage Act 1955. ↩
- Section 3(1) Social Security Act 1964. ↩
- Section 8 Care of Children Act 2004. ↩
- Sections 3 and 20(1) Education Act 1989. ↩
- Section 20 Prostitution Reform Act 2003. ↩
- Sections 134(6)(a), 209A and 152 Crimes Act 1961. ↩
- Section 5(1) Sale and Supply of Alcohol Act 2012. ↩
- Section 30AA(1) Smoke-Free Environment Act 1990. ↩
- Section 2(2) CYPF Act; Latimer v R [2013 ↩
- Section 117 CYPF Act. ↩
- Section 2 CYPF Act. ↩
- Robert Ludbrook “Submission on the draft New Zealand report to the UN Committee on the Rights of the Child” (2014) at 3. ↩
- Article 1 United Nations Convention on the Rights of a Child 1989. ↩
- Article 40.3(b) United Nations Convention on the Rights of a Child 1989. ↩
- Articles 1.5 and 5.1 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”). ↩
- New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997 ↩
- New Zealand Government, Initial Report of New Zealand to the Committee on the Rights of the Child,(1997 CRC/C/28/Add. 3) at [7 ↩
- Children, Young Persons, and Their Families Amendment Bill (No. 6) 2007 (183-2). ↩