The Opposition’s newly released law and order policy makes some claims that aren’t based in fact, argues Dr Nessa Lynch, an associate professor at the Faculty of Law at Victoria University of Wellington.
New Zealand’s youth justice system works well for the majority of our young people who come to notice for offending. Like in comparable jurisdictions, however, there are some entrenched and difficult challenges. Over-representation of certain groups (particularly tamariki and rangatahi Māori), addressing the complex needs of those who offend in a serious and persistent manner, participation of victims, capacity and availability of reintegrative services, and resourcing are all regularly identified as problematic. Proposals to address these complex issues are always welcome.
National’s law and order policy published yesterday, contains errors which undermine its contribution to progressing the issues for youth justice. I’ll highlight two here.
First, the document purports to highlight some achievements, with National proudly taking responsibility for a significant change in the law during its last term: “we changed the law so serious and recidivist 17-year-old offenders would for certain offences automatically be transferred to the District or High Court to face charges”.
In fact, before the National-led government changed the law in 2017 (which took full effect from 1 July 2019), all 17-year olds, for all offences, were liable to be dealt with in the District and High Courts. The protections of the youth justice system ended at 17. What the National-led government did do, was to take the principled and evidence-based step of raising the age of penal majority to 18. The National Party should be proud that this change now ensures that all young people benefit from procedural protections during police questioning and investigation and that youth diversionary procedures and the Youth Court jurisdiction are available. Granted, the law change did exclude 17-year-olds accused of some top-end offences, and there is a category of long-standing exceptions including homicide and jury trials. This still leaves New Zealand lagging many European, Australian and North American jurisdictions who apply the youth jurisdiction for all under-18s, and far behind the many jurisdictions (such as Germany, Croatia and the Netherlands) who extend special protections to young adults up until their mid-20s.
Secondly, the policy proposes a scheme for wiping young peoples’ ‘convictions’ for offences attracting less than two years imprisonment on the basis that “sometimes young people get on the wrong side of the tracks and do something silly. While it’s inexcusable to offend in any circumstances, we recognise often initial offending has a detrimental impact on the rest of their lives”.
I strongly agree with the statement. Who reading this hasn’t done foolish and/or harmful things in their youth? There’s a strong evidence base to show that the majority of youth offending stems from temporal risk factors, and that accountability without labelling is the best approach.
But the policy on wiping convictions betrays a concerning ignorance of how the youth justice system has operated for the last 30 years. Where young people are dealt with through the Youth Court (and given the success of police diversion, this is a small percentage), most will receive an absolute discharge if they have complied with their plan. This plan is decided on with the input and agreement of the young person and their whanau, the victim of the offence, and the Police, and approved by the Youth Court Judge.
This allows a young person to be held accountable through comprehensive obligations such as reparation and apologies to victims, engagement with drug and alcohol services, re-engagement with education, curfews and non-association provisions, but to leave the process without a permanent stain on their record.
Formal Youth Court orders (such as time spent in custody in a youth justice residence) are reserved for more serious offences, or where there has been non-compliance. Even then, such orders are not ‘convictions’, and a young person is entitled to make that statement on official documentation. The only young persons that can be ‘convicted’ are those found guilty of murder or manslaughter, or who have been transferred to the adult system for very serious charges or jury trials. There appears to be no possible instances of under-18s who would fit into the category of having a conviction for an offence attracting a penalty of less than two years imprisonment, making the policy a nullity.
Then there’s the suggestion that a young person’s Youth Court record be completely wiped. That’s something I would certainly not support as there needs to be a balance between a young person’s interest in re-integration and the need to have an official record of orders. Consider a young person who has been given a Youth Court order for a sexual offence but has completed the necessary rehabilitative programmes successfully and made amends for their wrongdoing. The current system has the correct calibration in allowing the young person to go into adulthood without a formal criminal conviction, but in having a record of the order available for limited official purposes, for example in Vulnerable Children Act vetting processes or to justify retention of DNA.
So there you have it. National has released a policy that offers some solutions in search of problems. And it leaves us with some significant problems still in search of solutions.
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