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Review of Gatekeeping Role in Young Offenders Act 133 Magistrates are the last gatekeepers in the chain. Judicial supervision can play an important role in ensuring that the integrity of the system is maintained. In New Zealand, for example, the judiciary has been a very public and effective proponent of the system and has greatly assisted in the acceptance of the scheme by the community. Concerns about the standard of decisions 134. During the course of my consultations, several issues arose in relation to the standard of decisions made by Magistrates. These issues were:
Expertise of Local Court Magistrates 135. Stephen Scarlett, Senior Children’s Court Magistrate, acknowledged that while Specialist Children’s magistrates are enthusiastic about the legislation and are making appropriate decisions, few local court magistrates have sufficient training and expertise to know when a matter should be cautioned or referred for conferencing rather than dealt with by the court. Despite the appointment of additional Children’s Magistrates by the end of 1999, there will still be magistrates who are both children’s magistrates and Local Court magistrates dealing with children’s matters, for example in the Far West towns of Broken Hill and Walgett. Giving cautions under the Children (Criminal Proceedings) Act 1987 136. While YLOs acknowledged that on many occasions magistrates were making appropriate decisions to caution a young person in court or to refer a matter for conference, there were several instances where they viewed decisions magistrates made as inappropriate. One example cited was giving cautions under the Children (Criminal Proceedings) Act 1987. Although the legislation provides that, “Nothing in this Part affects the power of a court to give a caution under section 33 of the Children (Criminal Proceedings) Act 1987”, police saw it is more appropriate to give a caution under the Young Offenders Act 1987. This begs the question as to why the young person was not cautioned by police in the first instance.
RECOMMENDATION Magistrates dealing with Children’s matters should be given guidelines in a Practice Direction in relation to when it is appropriate to caution under the Children (Criminal Proceedings) Act 1987 and when it is appropriate to caution under the Young Offenders Act 1997.
Inappropriate referrals to conference and refusal to refer matters to conference Is anyone monitoring magistrates decision re conference referrals? A certain magistrate will not refer any juvenile for any matter to a conference. Many magistrates in my area have been referring on offences where a caution by the “beak” would be far more cost effective and appropriate. 137. One officer I spoke to did not agree with a magistrate’s decision to refer a matter of offensive language for a conference rather than a caution. A lawyer practicing in this area agreed that some magistrates are referring matters for conference which should have been dealt with by way of caution. A lawyer practicing in the children’s area said that she knows of magistrates (especially outside Sydney Metropolitan area) refusing to refer matters for a conference. One magistrate was quoted as stating in open court that conferencing was a waste of taxpayer’s money.
RECOMMENDATION The Children’s Court should give priority to training all magistrates dealing with children’s issues in the content and philosophy of the Act. In addition Practice Directions should contain guidelines in relation to the circumstances when it is appropriate to caution or refer matters for conference.
Failure to provide reasoning for decision Why do not the magistrate’s write or inform of their decisions when referring young people to conference? 138. YLOs suggested that magistrates provide some reasoning for their decisions so that police would have the benefit of understanding the basis for that decision. A court that gives a caution must notify the relevant Local Area Commander in writing of its decision and the reasons for the caution being given. s 31(4)
RECOMMENDATION Training for magistrates hearing children’s matters and Practice Directions should include reference to the fact that reasons are required under s 31(4) of the Act.
Referral to Community Aid Panels 139. Another criticism of some magistrates is that they are continuing to refer matters involving young people to Community Aid Panels (CAPS). These panels were first established in 1987 to deal with first or minor offenders. They are coordinated by a member of the Police Service and consist of a police officer, a lawyer and two members of the community. The panel discusses with the offender, and their family, the circumstances of the offence and any underlying concerns. The panel then makes recommendations about how the matter should be dealt with. It is then returned to the Court for final determination. The scheme can include both adults and juveniles but is not an official program. The Report of the New South Wales Working party on Family Group conferencing and the Juvenile Justice System New South Wales Attorney General’s Department, September 1996. noted that the only evaluation of CAPS was carried out by the Juvenile Justice Unit in the former Department of Family and Community Services. That evaluation noted six main areas of concern:
RECOMMENDATION Magistrates should give consideration to confining their decisions to the options available under the Act rather than using extra-legislative schemes such as CAPS. Insufficient knowledge and training in relation to some Magistrates. There should be more training for magistrates in relation to the YO Act What flow of information do the magistrates have access to or do they solely depend on administrators keeping them informed re the YOA. Magistrates require practice directions from the Senior Children’s magistrate as a matter of urgency. Practice directions urgently required. Should ensure inappropriate matters are not referred to conferencing.
141. Stephen Scarlett, Senior Children’s Court Magistrate, advised that all children’s court and special magistrates had training on the Act before its commencement. All have a copy of the Act and an article written by the Judicial Commission. Mr Scarlett also advised that on 1 and 2 September 1999 at the Children’s Court Magistrates Conference, the Draft Practice Directions were discussed.
142. According to Jenny Bargen, Director, Youth Justice Conferencing, Officers from the Attorney General’s Department gave presentations on the Act at all Magistrates’ Conferences held throughout the state. Bargen J, “The Young Offenders Act 1997 (NSW) - a blueprint for restorative organisational reform in juvenile justice in NSW?” Government Lawyers Conference, Parliament House Sydney, 4 August 1999. She noted that: “ . . . a significant number of magistrates who sit as children’s court magistrates have received no instruction on the Act. No official Practice Directions have yet been published” Bargen J, “The Young Offenders Act 1997 (NSW) - a blueprint for restorative organisational reform in juvenile justice in NSW?” Government Lawyers Conference, Parliament House Sydney, 4 August 1999 at 12
RECOMMENDATION All magistrates applying the Act should receive initial as well as refresher training.
143. The Youth Justice Advisory Committee (YJAC) forwarded a proposal for Practice Directions to be developed to the Senior Children’s Court Magistrate in February 1998. The Committee anticipated that the Directions would be available to magistrates when the Act commenced operation in April of that year. In August 1998 the Senior Children’s Magistrate provided a draft for comment. YJAC’s most recent letter to Mr Scarlett is dated 27 September 1999 and provides several suggestions for amendment to a draft provided on 2 September 1999.
RECOMMENDATION The Children’s Court should finalise Practice Directions in relation to the Act as soon as possible. |
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